FACULTY OF LAW

ASSIGNTMENT ON
DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION

PAPER CODE V
SUBJECT
LAW OF CRIME II
SUBMITTED BY SUBMITTED TO
ANKIT KUMAR DR. CHANDRA SEN
SONKER LL.B. (HONS) PRATAP SINGH
2 YEAR SEMESTER III ASSISTANT Professor
SECTION A

Table of Contents
  Introduction

 Kidnapping

 Abduction

 Difference between kidnapping and abduction

 Aggravated forms of kidnapping and abduction

 Statistics

 Bibliography

INTRODUCTION

In the terminology of the common law in many jurisdictions (according to Black’s

Law Dictionary), the crime of kidnapping is labeled abduction when the victim is a
woman. In modern usage, kidnapping or abduction of a child is often called child
stealing, particularly when done not to collect a ransom, but rather with the intention
of keeping the child permanently (often in a case where the child’s parents are
divorced or legally separated, whereupon the parent who does not have legal custody
will commit the act; then also known as “child napping”). The word “kidnapping”
was originally “kid nabbing”, in other words slang for “child stealing”, but is no
longer restricted to the case of a child victim.1

CHILD ABDUCTION

Child abduction can refer to children being taken away without their parents’ consent,
but with the child’s consent. In England and Wales it is child abduction to take away a
child under the age of 16 without parental consent. Abduction is the crime in English
law of taking a) a girl under 16 from possession of her parent, or guardian, or b) a girl
of 18 or defective woman of any age from such possession of unlawful sexual
intercourse, or c) a girl under 21 to marry or have sexual intercourse, or d) taking
away and detaining any woman with the intention that she shall marry or have
unlawful sexual intercourse with a person, by force, or for the sake of her property.
Abduction or kidnapping any child is also an offence. Abduction of voters is also a
criminal act.2

KIDNAPPING
Kidnapping, according to Walker,3 is the common name for the common law offence
of carrying away, or secreting, of any person against his will, or against the will of his
lawful guardians. It may be constituted by false imprisonment, which is total restraint
of a person and his confinement without lawful authority or justification.

1
http://www.man.org.np/mdcampus/ppt/17-Kidnapping%20and%20extortion-Ranendra%20Man.ppt,
2
Walker, “Oxford Companion to Law”, Oxford Publications, New Delhi, 20th Edition, 1980, pg. 701
3
Ibid, pg.3
Ten Conditions, Of Kidnapping In IPC:
India has comprehensive legislation to counter kidnapping, with the Indian Penal
Code outlining 10 specific offences related to the purpose of the kidnapping. These
are-
 Kidnapping a minor for purposes of begging;
 Kidnapping in order to murder;
 Kidnapping for ransom;
 Kidnapping with the intent to secretly and wrongfully confine a person;
 Kidnapping a woman to compel her into marriage;
 Procuration of a minor girl;
 The importation of a girl from a foreign country;
 Kidnapping in order to subject a person to grievous harm, including slavery
kidnapping a child under 10 years old;
 Stealing or buying a minor for the purpose of prostitution. 4

Meaning of kidnapping in the local language include the abduction as synonym but

the real difference in the understanding is following:

Section 359:

Kidnapping: Kidnapping is of two kinds: kidnapping from India, and kidnapping

from lawful guardianship.

The literal meaning of kidnapping is child stealing.

The draftsmen of the code said:

4
http://www.man.org.np/mdcampus/ppt/17-Kidnapping%20and%20extortion-Ranendra%20Man.ppt.,
 “the crime of kidnapping consists, according to our definition of it, in conveying a
person without his consent or the consent of some person legally authorized to
consent on his behalf, or with such consent obtained by deception, out of the
protection of the law, or of those whom the law has appointed his guardians.”

“This offence may be committed on a child by removing that child out of the keeping
of its lawful guardian or guardians. On a grown-up man it can be committed only by
conveying him beyond the limits of the Company’s territories, or by receiving him on
board of a ship for that purpose.”

“The carrying of a grown up person by force from one place within the Company’s
territories to another, and the enslaving him within the Company’s territories, are
offences sufficiently provided for under the heads of restraint and confinement. The
enticing of a grown-up person by false promises to go from place , may be a subject
for a civil action, and , under circumstances, for a criminal prosecution; but it does not
appear to us to come properly under the head of kidnapping.”5
In Badlu Shah v Emperor6 it was held that Kidnapping and abduction do not include
the offence of wrongful confinement or keeping, in confinement, a kidnapped person. 7

The words ‘kidnapping’ and ‘abduction’ do not include the offence of wrongful
confinement or keeping in confinement a kidnapped person.

SECTION 360:

Kidnapping from India: Whoever conveys any person beyond the limits of India

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 India.

5
K.K Singh and R.Bagga, “Indian Penal Code”, The Law Book Company, Allahabad, 2nd edition, 1994,
pg.2.
6
AIR 1929 All 454
7
Sarvaria SK, “RA Nelson’s Indian Penal Code” ed. 9th , Vol. 3, LexisNexis Butterworths Publications, New
Delhi pg. 3512
Essential ingredients: The following are the essential ingredients of the offence
under this section:
1) Conveyance of a person: To convey means to carry from one place to another.
The conveyance or carrying is a continuous process until the destination is
reached. In the case of any offence under this section, the destination must be
some foreign territory.
2) Beyond the limits of India: these words in the section indicate that for an
offence under it must be to some foreign territory.
3) Without the consent of that person or of some person legally authorized to
consent on behalf of that person: A consent given under a misapprehension of
fact, is not true consent.8

SECTION 361:

Kidnapping from lawful guardianship: 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 such guardian, is said to kidnap such

minor or person from lawful guardianship

The offence under this section may be committed in respect of either a minor or a
person of unsound mind. To kidnap a grown-up person, therefore would not amount to
an offence under it.9

The object of this section is at least as much to protect children of tender age from
being abducted or seduced for improper purposes, as for the protection of the rights of
parents and guardians having the lawful charge or custody of minors or insane
persons.
8
K.K Singh and R.Bagga, “Indian Penal Code”, The Law Book Company, Allahabad, 2nd edition, 1994,
pg.3.
9
Ratanlal DhirajLal, “Indian Penal Code”, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition
(Reprint 2004 Edition) 2008, pg. 649.
 Ingredients: This section has four main essentials10:
1. Taking or enticing away a minor person or a person of unsound mind.
2. Such minor must be under the age of sixteen years, if male, or under the age of
eighteen years, if a female.
3. The taking away or enticing must be out of the keeping of the lawful guardian of
such minor or person of unsound mind.
4. Such enticing away must be without the consent of the lawful guardian.

The taking need not be by force, actual or constructive, and it is immaterial whether
the girl consents or not. There must be a taking of the child out of the possession of
the parent. If a child leaves its parent’s house for a particular purpose with their
consent, it cannot be said to be out of the parent’s keeping. 11

The offence of kidnapping from lawful guardianship is complete when the minor is
actually taken from lawful guardianship; it is not an offence continuing so long as the
minor is kept out of such guardianship. In determining whether a person takes a minor
out of the lawful guardian, the distance to which the minor is taken away is
immaterial. The act of taking is not, in the proper sense of the term, a continuous act:
when once the boy or girl has been actually taken out of the keeping, the act is a
completed one. If continuous, it would be difficult to say when the continuous taking
ceased; it could only be when the boy or girl was actually restored to the keeping of
the guardian.12

Enticing is an act of the accused by which the person kidnapped is induced of his own
accord to go to the kidnapper. The word ‘entice’ involves an idea of inducement or
allurement by exciting hope or desire in the other. It may take many forms difficult to
visualize. The word Taking in this section means nothing but physical taking.13

10
Restated in Biswanath Mallick v. State of Orissa, 1995 CrLj 1416 (Ori).
11
Ratanlal DhirajLal, “Indian Penal Code”, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition
(Reprint 2004 Edition) 2008 at pg. 650.
12
Ibid.
13
Basu N.D., “Commentary on Indian Penal Code” ed. 10th, vol. 2, Ashoka Law House, New Delhi, 2007 pg.
1900
The word “keeping’ implies neither apprehension nor detention but rather
maintenance, protection and control, manifested not by continual action but as
available on necessity arising and this relation between the minor and the guardian is
certainly not dissolved so long as the minor can at will take advantage of it and place
herself within the sphere of its operation.14

The guardianship of the mother does not cease while a minor is in the possession of
another person who has been lawfully entrusted with the care and custody of such
minor by the mother.15If the minor is not in the custody of a lawful guardian, the
offence cannot be committed, whatever the belief of the taker may be. The taking or
enticing of the minor out of the keeping of the legal guardian must be without his
consent. The consent of the minor is immaterial. If a man by false and fraudulent
representation induce the parents of a girl to allow him to take her away, such taking
will amount to kidnapping. In case of Parkash v. State of Haryana16 it was said that
the two words ‘takes’ and ‘entices’ as used in Section 361, IPC are intended to be read
together so that each takes to some extent its colour and content from the other. If the
minor leaves her paternal home completely uninfluenced by any promise, offer or
inducement emanating from the guilty party, then the latter cannot be considered to
have committed the offence as defined in Section 361, IPC. Consent given by the
guardian after the commission of the offence would not cure it. 17
The word ‘lawful’ must be literally construed so as to distinguish it from “legal
guardian” as a guardian maybe lawful without being legal. The expression “lawfully
entrusted” signifies that the care and custody of a minor. Entrustment means the
giving, handing over, or confiding of something by one person to another.

SECTION 363:
Punishment for Kidnapping: Whoever kidnaps any person from India or from lawful
guardianship shall be punished with imprisonment of either description for a term
which may extent to seven years, and shall also be liable to fine.
14
Vishnu v. State, 1997 Cr LJ 1724
15
K.K Ali, (1936) 15 Pat 817
16
2004 Cr.L.J. 595 SC
17
Ganesh, (1909) 31 All 448
This section must be read with Section 361. The offence of kidnapping from lawful
guardianship penalized by this section is the offence which is defined by Section
361.18 The person against whom the offence is committed must be under the age of
sixteen, if a male, and under the age of eighteen years if a female. Where a girl of 23
years of age left her parents of her own will and married a man, section 363 or 366
19
was not attracted. Where in a case of kidnapping the girl deposed that she had gone
with the accused voluntarily, his conviction u/s 363 was set aside.20

ABDUCTION

As expand kidnapping, abduction is also a crime under Indian Penal Code it is

mentioned in following sections.
Section 362:

Abduction: “Whoever by force compels, or by any deceitful means induces, any

person to go from any place, is said to abduct that person”

This section merely gives a definition of the word “abduction” which occurs in some
of the penal provisions which follow. There is no such offence as abduction under the
Code, but abduction with certain intent is an offence. Force or fraud is essential.
Ingredients- this section requires two things21:
1. Forceful compulsion or inducement by deceitful means.
2. The object of such compulsion or inducement must be the going of a person from
any place.

Force in Section 362 means actual force and not merely a show or threat of force.
Deceitful means signifies anything intended to mislead another. It includes
18
Ratanlal DhirajLal, Indian Penal Code, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition (Reprint 2004
Edition) 2008, p. 651
19
Oroos Fatima v Sr. Supdt of Police, Aligarh, 1993 CrLJ 1 (All)
20
Bhajan Lal v. State of U.P, 1996 CrLJ 460 (All)
21
Ratanlal DhirajLal, Indian Penal Code, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition (Reprint 2004
Edition) 2008, p. 657
inducement and its scope is very wide. The intention of the accused, one may say, is a
gravamen of the charge. The case of Rabinarayan Das22 is a pointer in this regard.
Here the prosecutrix was blind. She wanted to go to her school. However, the
petitioner took her to secretariat premises. Evidence of inducement is not forthcoming
and yet there was nothing to prove that the woman had gone there out of her volition
or free will.23
Abduction is a continuing offence. The abduction of a married woman comes under
section 366 and the actual validity or otherwise of the marriage is immaterial. Mere
abduction without a criminal intent of one of the kinds specified in the section is not
recognized as an offence.

AGGRAVATED FORMS OF KIDNAPPING AND ABDUCTION

Sections 363A to 369 are aggravated form of kidnapping and abduction. Kidnapping
is an offence in itself but abduction is not so the aggravated form not only offence but
they are only liability clause in the statute.

Section 363A.

Kidnapping or maiming a minor for purposes of begging: (1) Whoever kidnaps any

minor or, not being the lawful guardian of a minor, obtains the custody of the minor,

in order that such minor may be employed or used for the purpose of begging shall be

punishable with imprisonment of either description for a term which may extend to

ten years, and shall also be liable to fine.

(2) Whoever maims any minor in order that such minor can be employed or used for
the purposes of begging shall be punishable with imprisonment for life, and shall also
be liable to fine.

22
1992 Cri LJ 269 at p.273
23
B.M. Gandhi, ‘Indian Penal Code’, Eastern Book Company,Lucknow, 2nd Edition, 2006, p. 528
(3) Where any person, not being the lawful guardian of minor, employs or uses such
minor for the purpose of begging, it shall be presumed, unless the contrary is proved,
that he kidnapped or otherwise obtained the custody of that minor in order that the
minor might be employed or used for the purposes of begging.
(4) In this section –
(a) “Begging” means;
(i) Soliciting or receiving alms in a public place, whether under the pretence of
singing, dancing, fortune-telling, performing tricks or selling articles or otherwise;
(ii) Entering on any private premises for the purpose of soliciting or receiving alms;
(iii) Exposing or exhibiting, with the object of obtaining or e extorting alms, any sore,
wound, injury, deformity or disease, whether of himself or of nay other person or of
an animal;
(iv) Using a minor as an exhibit for the purpose of soliciting or receiving alms;
(b) “Minor” means-
(i) In the case of a male, a person under sixteen years of age; and
(ii) In the case of a female, a person under eighteen years of age.

This Section was inserted in 1959 to put down effectively the evil of kidnapping
children for exploiting them for begging. There are cases wherein minors are
kidnapped are kidnapped and castrated with a view to make them eunuchs who could
be useful as professional beggars. The offence under Section 363-A is triable by a
Magistrate of the first class while under 363 –A(2) is triable by a Court of Sessions.
Barring this the offence under 363-A is cognizable, not bailable and not
compoundable.24

Although men are also victimized, the overwhelming majority of those trafficked are
women and children. According to official estimates, between 1 and 2 million women
and children are trafficked each year worldwide for forced labour, domestic servitude,
or sexual exploitation. An estimated 50,000 persons are trafficked each year to the

24
B.M. Gandhi, “Indian Penal Code”, Eastern Book Company, Lucknow, 2nd Edition, 2006, p. 529
United States. Trafficking is now considered the third largest source of profits for
organized crime, behind only drugs and guns, generating billions of dollars annually.

Child Trafficking25 is an inhumane offence against defenseless and innocent children.

Millions of children are forcibly trafficked or coerced across borders only to be sold in
the sex trade, for illegal adoption, for criminal activities, for work as domestic
servants, beggars, soldiers, or for other purposes. The urgency to combat trafficking
in children is understandable considering the heinous nature of the phenomenon – it is
an affront to principles of human dignity and morality and a severe violation of basic
human rights. Principle 9 of the Geneva Declaration of Rights of the Child of 1924
states explicitly that the “The child shall be protected against all forms of neglect,
cruelty and exploitation. He shall not be the subject of traffic, in any form.” 26

Despite being in existence for centuries, Child Trafficking has only in recent years
emerged as an issue of global concern due to the worldwide consensus and co-
operation to join hands in fighting this heinous crime; With the amplification of
international and national legal apparatus, the trafficking of human beings is perceived
to be more than a crime – it is a serious violation of human rights, children’s rights,
labour rights and basic fundamental freedoms. Child Trafficking has become highly
lucrative and increasingly worthwhile as women and children are considered
commodities which can be “sold” several times over. With the permeable borders and
the advancement of technology child trafficking has expanded around the Globe
where the routes for trafficking children alter according to local conditions or supply
and demand factors. It is no longer adequate to say that victims are trafficked from
poor to the wealthier ones.

25
Van Bueren ,“The International Law on the Rights of a Child,” Kluwer 1989 – “Trafficking” in children
is defined as the recruitment, transportation, transfer, harbouring or receipt of a child for the purposes of
exploitation.
26
Puan Sri Datin Seri N. Saraswathy Devi, ‘Child Trafficking :The Recent emergence of the global issue”,
retrieved from http://www.ewla.org/wf_dl/paper_Devi.doc
Violence is not the necessary mode for child trafficking, as has been often
misconceived, as the victims are tricked, deceived, forced, sold by their parents or
otherwise coerced into situations, which they later cannot escape from. 27

SECTION 364:

Kidnapping or abducting in order to murder: Whoever kidnaps or abducts any

person in order that such person may be murdered or may be so disposed of as to be

put in danger of being murdered, shall be punished with imprisonment for life or

rigorous imprisonment for a term which may extend to ten years, and shall also be

liable to fine.

To establish an offence under this section it must be proved that the person charged
with the offence had the intention at the time of the kidnapping or abduction that the
person will be murdered or so disposed of as to be put in danger of being murdered. 28
If no evidence is available on the score, the accused cannot be convicted under this
section. Where the witnesses saw the party of the accused persons forcibly taking
away a woman, who was found dead a week later, and though there was nothing to
connect them with the murder, there was evidence of the body being destroyed by
them, they were convicted not of murder but only under this section and s. 201 for
destroying evidence.29 In another case the two accused and the third person were seen
disappearing together. They had drinks and moved away. The one who did not return
home, his moustache, torn kurta and a few drops of blood were found by the side of a
swollen river. Whether he was pushed, or he slipped could not be known. His
companions were not convicted under this section. 30 Where the accused persons, on

27
Puan Sri Datin Seri N. Saraswathy Devi, ‘Child Trafficking :The Recent emergence of the global issue”,
retrieved from http://www.ewla.org/wf_dl/paper_Devi.doc
28
Ratanlal DhirajLal, Indian Penal Code, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition (Reprint 2004
Edition) 2008, p. 660
29
Pati Ram v. State of U.P., 1990 Cr LJ 447 (All.).
30
Mahavir v. State of U.P, 1990 Cr LJ 1605 (All).
false pretext of repaying the money to the deceased, induced him to accompany them
to a distant place and after killing him, threw the body in a private ravine, their
conviction under s. 364 along with sections 300 and 201 was upheld.31

SECTION 364-A

Kidnapping for ransom, etc: Whoever kidnaps or abducts any person or keeps a

person in detention of the such kidnapping or abduction and threatens to cause death

or hurt to such person, or by his conduct gives rise to a reasonable apprehension that

such person may be put death or hurt, or causes hurt or death to such person in order

to compel the Government or any foreign State or international inter-governmental

organization or any other person to do or abstain from doing any act or to pay a

ransom, shall be punishable with death, or imprisonment for life, and shall also be

liable to fine.

The kidnapped child was recovered from the custody of the accused by the raiding
party. The letter demanding ransom was recovered from the pocket of the accused. He
had neither posted it nor contacted any body for the purpose for three days till his
arrest. The court said that there was no demand for ransom. An offence under this
section was not made out. Conviction under section 363 and 365 was held proper.32
Hence the ingredients of this section are33:
1. Kidnapping or abducting any person
2. Threatens to cause death or hurt to such person
3. Compelling the Government or any person to pay ransom.

31
Valiyaveetil Ashraf v State, 1994 Cr LJ 555 (Ker).
32
Netra Pal v. State (NCT) of Delhi, 2001 Cr LJ 1669 (Del)
33
Ratanlal DhirajLal, “Indian Penal Code”, LexisNexis Butterworth’s Wadhwa, Nagpur, 13th Edition
(Reprint 2004 Edition) 2008, pg. 661.
 SECTION 365:

Kidnapping or abducting with intent secretly and wrongfully to confine person:

Whoever kidnaps or abducts any person with intent to cause that person to be secretly

and wrongfully confined, shall be punished with imprisonment of either description

for a term which may extend to seven years, and shall also be liable to fine.

Section 365 requires an intention to confine a person secretly and wrongfully. Holding
a person to ransom by his abductors is an offence under this section. 34

Where there was sufficient evidence to show that the victim woman abducted from
her house and then taken to different places which included confinement to one place
until she was recovered by the police, it was held that the accused could be convicted
under this section and S. 368 but not section 366.35

There was ample evidence to show that the victim was taken away under deceit and
then sold to a brothel house. She was not a minor at the time of the incident.
Therefore, the accused could not be convicted under S. 366 or 372. They could be
convicted under S.365.36

SECTION 366:
Kidnapping, abducting or inducing woman to compel her marriage, etc: Whoever

kidnaps or abducts any woman with intent that she may be compelled, or knowing it

to be likely that she will be compelled, to marry any person against her will, or in

order that she may be forced or seduced to illicit intercourse, or knowing it to be

likely that she will be forced or seduced to illicit intercourse shall be punished with

imprisonment of either description for a term which may extend to ten years, and
34
B.M. Gandhi, ‘Indian Penal Code’, Eastern Book Company,Lucknow, 2nd Edition, 2006 at p.530
35
Fiyaz Ahmed v. State of Bihar, 1990 Cr LJ 2241.
36
Shaik Ramjan v State, 1999 Cr LJ 2161.
shall also be liable to fine; and whoever, by means of criminal intimidation as defined

in this Code or of abuse of authority or any other method of compulsion, induces any

woman to go from any place with intent that she may be, or knowing that it is likely

she will be, forced or seduced to illicit intercourse with another person shall be

punished as aforesaid.

Where a woman has no intention of marriage or lawful intercourse when kidnapped,

this section applies.37
Ingredients: this section requires:

1. Kidnapping or abducting of any woman

2. Such Kidnapping or abducting must be-
i) with intent that she may be compelled or knowing it to be likely that she
will be compelled to marry any person against her will or
ii) in order that she may be forced or seduced to illicit intercourse, or knowing
it to be likely that she will be forced or seduced to illicit intercourse; or
iii) by means of criminal intimidation or otherwise by inducing any woman to
go from place with the intent that she may be, or knowing that she will be,
forced or seduced to illicit intercourse.38
It is immaterial whether the woman kidnapped is a married woman or not.

KIDNAPS OR ABDUCTS ANY WOMAN:

If the girl was eighteen or over, she could only be abducted and not kidnapped, but if
she was under eighteen she could be kidnapped as well as abducted if the taking was
39
by force or the taking or enticing was by deceitful means. Voluntarily going away

37
Ratanlal DhirajLal, “Indian Penal Code”, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition
(Reprint 2004 Edition) 2008, pg. 664.
38
Ibid.
39
Nawabkhan v. State, 1990 Cr LJ 1179 (MP)
for marriage is not an offence under this section. Doubts about age, if not resolved
satisfactorily, would go in favor of the accused.40

WITH THE INTENT THAT SHE MAY BE COMPELLED TO MARRY ANY

PERSON AGAINST HER WILL :
The intention of the accused is the basis and the gravamen of the offence under this
section. The volition, the intention and the conduct of the woman do not determine the
offence; they can only bear upon the intent with which the accused kidnapped or
abducted the woman.41 Where only confinement was established, the Supreme Court
held that the conviction was possible under S. 365 and 368 and not 366. 42 Once the
necessary intent of the accused is established the offence is complete, whether or not
the accused succeeded in effecting his purpose, and whether or not in the event the
woman consented to the marriage or the illicit intercourse.43

FORCED OR SEDUCED TO ILLICIT INTERCOURSE:

The word ‘forced’ is used in its ordinary dictionary sense and includes force by stress
of circumstances. The expression ‘seduced’, used in this section and section 366-A,
44
means inducing a woman to submit to illicit intercourse at any time. Where a girl
under eighteen years of age is taken away from the keeping of her father by the
accused with the object of marriage and section, he is guilty of an offence under this
section, notwithstanding the fact that the girl accompanied him if her own accord and
not as a result of force or misrepresentation. Mere abduction does not bring an
accused under the ambit of Section 366 of the Indian Penal Code (Kidnapping
abducting or inducing woman to compel her marriage).

Unless the prosecution proves that the abduction is for the purposes mentioned in
Section 366, IPC, the Court cannot hold the accused guilty and punish him under the
section.
40
Satish Kumar v. State, 1988 Cr LJ 565 (Del)
41
Ratanlal DhirajLal, “Indian Penal Code”, LexisNexis Butterworth’s Wadhwa, Nagpur, 13th Edition
(Reprint 2004 Edition) 2008, pg. 665.
42
Fiyaz Ahmad v. State of Bihar, 1990 Cr LJ 2241
43
Khalil-Ur-rahman, (1933) 11 Ran 213 (FB)
44
Ramesh, (1962) 64 Bom LR 780 (SC)
The Supreme Court made these observations while hearing an appeal challenging a
conviction under Section 366 of the IPC.

Gabbu was tried for committing offences under Section 366. The Session Court
convicted the accused-appellant under Sections 366 and sentenced him to undergo two
years rigorous imprisonment. The High Court in the appeal preferred by the accused
appellant confirmed the order of the Session Court following which the Supreme
Court was moved.

A Division Bench comprising Justices S B Sinha and P P Naolekar, while setting

aside the conviction and allowing the appeal observed that that a mere finding that a
mere finding that a woman was abducted is not enough. It must be further proved that
the accused abducted the woman with an intent that she may be compelled, or
knowing it to be likely that she will be compelled to marry any person or in order that
she may be forced or seduced to illicit intercourse or knowing it to be likely that she
will be forced or seduced to illicit intercourse. Further, the Bench observed that is
necessary for the prosecution to prove that the accused induced the complainant-
woman or compelled by force to go from any place that such inducement was by
deceitful means.

While dealing with the instant case the Bench observed that the prosecutrix had
nowhere alleged that she was abducted with the intention to commit an offence. In
overall consideration of the material placed on record by the prosecution, we do not
find that the prosecution has proved that the accused-appellant has committed an
offence under Section 366, IPC. There is a doubt as to the place of incident and the
motive of the accused in taking away the prosecutrix. We find it difficult to believe in
the story put up by the prosecutrix that she was forced to leave her place of residence
under a threat by showing a knife to her, the court also observed. In order to constitute
an offence a person must be carried off.

SECTION 366 A:
Procuration of minor girl: Whoever, by any means whatsoever, induces any minor

girl under the age of eighteen years to go from any place or to do any act with intent

that such girl may be, or knowing that it is likely that she will be, forced or seduced to

illicit intercourse with another person shall be punishable with imprisonment which

may extend to ten years, and shall also be liable to fine.

Sections 366 and 366 B are intended to punish the export and import of girls for
prostitution. Section 366 A deals with procuration of minor girls from one part of
India to another part. Section 366B makes it an offence to import into India from any
country outside India below the age of twenty one years for the purpose of
prostitution.45

Ingredients:
This section requires two things: 1. inducing a girl under eighteen years to go from
any place to do an act, 2. intention or knowledge that such girl will be forced or
seduced to illicit intercourse with a person.
An offence under this section is one of inducement with a particular object, and when
after the inducement the offenders offer the girl to several persons a fresh offence is
not committed at every fresh offer for sale.

1. Seduced: The word ‘seduced’ is used in the ordinary sense of enticing or

tempting irrespective of whether the minor girl has been previously
compelled or has submitted to illicit intercourse.
2. Age: It is necessary to prove the age of the prosecutrix to be below 18
years. In this case, the school certificate was considered to be the best
evidence.
Predominantly, women and children are trafficked in for the “sexual trade”.

45
Ratanlal DhirajLal, “Indian Penal Code”, LexisNexis Butterworths Wadhwa, Nagpur, 13th Edition
(Reprint 2004 Edition) 2008, pg. 667.
The lack of employment in their native countries, force women and children into
illegal migration, through migrant traffickers who offer “package deals”. Deceptive
means such as false promises of careers in business, factories and households, are
used to lure the women and children to being trafficked. They are inevitably then
found imprisoned in brothels. In many cases, the women are lured to foreign
countries in the hope of obtaining legitimate work, where they are then paid salaries
and the poverty eventually forces them to resort to prostitution or to prostitute
themselves under duress.46

The trafficking of children is usually by way of kidnapping or abduction, once

abducted, threats and acts of violence are used to hold on to the victims. In Thailand
for instance, brothel managers employ agents to collect photos of young girls as they
go to school. The girls are then selected by the managers and upon selection the girls
are ordered by them for the agents to kidnap.

Aside from the kidnapping or abduction, Asian Countries have also faced the poverty
driven selling of “daughters” by the impoverished families to “agents” for sometimes
as low as US$200 a child, which children are then re-sold to traffickers. The sale of
the girl child by her family, due to poverty, in turn places the financial burden of
supporting her family on the girl child. Such trafficking is an example of non-violent
trafficking of children. Also of large incidence is where the agents pose as “potential
husbands” used to deceive the family of the girl child into believing the girl child and
her “rich” husband will take over their financial burden, inevitably however, the girl
child is then either sold to traffickers or forced into prostitution. However, one must
remember that it benefits the traffickers to keep their victims in a foreign environment
where not only are they vulnerable for having entered a country illegally, but are also
disadvantaged because of their ignorance of the law, culture and language of that
country.47
46
Puan Sri Datin Seri N. Saraswathy Devi, ‘Child Trafficking :The Recent emergence of the global issue”,
retrieved from http://www.ewla.org/wf_dl/paper_Devi.doc

47
Puan Sri Datin Seri N. Saraswathy Devi, ‘Child Trafficking :The Recent emergence of the global issue”,
retrieved from http://www.ewla.org/wf_dl/paper_Devi.doc
For women and girls additional protection is provided in the Immoral Traffic
Prevention Act. This act was amended in 1956 to provide for more severe penalties
for offences involving children and minors. Under this act anyone who detains a
woman or girl in a brothel or on any other premise with the intent that the female
person shall have sexual intercourse with other persons is liable to punishment. To
facilitate prosecution, certain circumstances are presumed to constitute illegal
detainment. Thus if someone is found with a child in a brothel or a child that has been
sexually assaulted is found in a brothel it is presumed that the child is illegally
detained. Offenders are liable to a prison term from 7 years to life. These strict
liability provisions allow for a higher possibility of curbing the offence, which would
otherwise not be possible without the reversal of the burden of proof as has often
happened in drug-related offences.48

SECTION 366B:

Importation of girl from foreign country:Whoever imports into India from any

country outside India 3or from the State of Jammu and Kashmir any girl under the

age of twenty-one years with intent that she may be, or knowing it to be likely that she

will be, forced or seduced to illicit intercourse with another person, shall be

punishable with imprisonment which may extend to ten years and shall also be liable

to fine.

The Select Committee in their Report observed: “the case of girls imported from a
foreign country we propose to deal with by the insertion of a new section 366 B in the
Code. We are unanimously of opinion that the requirements of the Convention will be
substantially met by penalizing the importation of girls from a foreign country. At the
same time we have so worded the clause as to prevent its being made a dead-letter by
the adoption of the course of

48
Ibid
importing the girl first into an Indian State.49 After the coming into force of the
Constitution of India this section was amended to bring it in accord with the changed
circumstances.50

Section 367:

Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc:

Whoever kidnaps or abducts any person in order that such person may be subjected,

or may be so disposed of as to be put in danger of being subject to grievous hurt, or

slavery, or to unnatural lust of any person, or knowing it to be likely that such person

will be so subjected or disposed of, shall be punished with imprisonment of either

description for a term which may extend to ten years, and shall also be liable to fine.

SECTION 368:

Wrongfully concealing or keeping in confinement, kidnapped or abducted person:

Whoever, knowing that any person has been kidnapped or has been abducted,

wrongfully conceals or confines such person, shall be punished in the same manner as

if he dad kidnapped or abducted such person with the same intention or knowledge,

or for the same purpose as that with or for which he conceals or detains such person

in confinement.

This section does not apply to the principal offender but to those persons who assist
him in concealing any person who has been kidnapped. A kidnapper cannot be
convicted under this section.51
Ingredients of this section:
1. The person in question has been kidnapped
49
Gazette of India, dated February 10, 1923, Part V, p.79
50
B.M. Gandhi, “Indian Penal Code”, Eastern Book Company,Lucknow, 2nd Edition, 2006 at p.536
51
Fiyaz Ahmed v. State of Bihar, 1990 Cr LJ 2241
 2. The accused knew that the said person had been kidnapped.
3. The accused having such knowledge wrongfully conceals or confines the
person concerned.

Apart from direct evidence these ingredients can be proved by facts and circumstances
of a particular case.52 In Saroj Kumari case53 the appellant was found in possession of
a newborn child. On asking, no explanation was given by her. She pretended to
conceal the child and claim it to be hers. It was a fact that she had not delivered in the
recent past. Since all the ingredients were established she was held to be guilty of the
offence. Knowledge of the assailant is the most important factor here. For all practical
and legal purposes, knowledge means the state of mind entertained by a person with
regard to existing facts which he has himself observed, or the existence of which has
been communicated to him by a person he has no reason to doubt.54

SECTION 369:

Kidnapping or abducting child less than ten years with intent to steal from its

person: Whoever kidnaps or abducts any child under the age of ten years with the

intention of taking dishonestly any movable property from the person of such child,

shall be punished with imprisonment of either description for a term which may extend

to seven years, and shall also be liable to fine.

This section is intended to protect enticing away of children from their parents in
order to steal ornaments from the children. The offence being a serious one,
punishment is 7 years imprisonment and fine. It may however be noted that the
offence under 363 is included in this section. 55 The offence is cognizable, non
bailable, not compoundable and triable by a first class Magistrate.

52
Saroj Kumari, 1973 Cr LJ 267
53
(1973) 3 SCC 669
54
B.M Gandhi, “Indian Penal Code”, Eastern Book Company, Lucknow,2nd Edition, 2006,p.537.
55
B.M Gandhi, “Indian Penal Code”, Eastern Book Company, Lucknow,2nd Edition, 2006,p.537.
DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION

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:

Types of Kidnapping Punishment Section of

 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

Abduction in order to murder 10 years + Fine 364

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

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

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

Abducting a child under 10 years of age in order to

7 years + Fine 369
steal 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.
STATISTICS
2006 –2008
There has been a significant rise in kidnapping cases owing to the rising prosperity
together with inadequate law enforcement. In 2006, the latest period for which data is
available, the number of reported abductions jumped 52 percent to 23,991, from
15,750 in 2005, ranking India sixth among 10 countries with the worst record for
kidnappings, according to the National Crime Records Bureau. Uttar Pradesh recorded
the highest number of kidnappings at 3,318 in 2006, followed by Bihar and Andhra
Pradesh at 2,619 and 2,030, respectively. The rise in kidnapping incidents comes at a
time when domestic and overseas companies are expanding in the hinterland, where
the law enforcement machinery is often not able to provide adequate protection to
their employees. Madhya Pradesh, Maharashtra, Uttar Pradesh and Chhattisgarh (997)
have accounted for 24.8, 15.4, 12.0 and 6.7 per cent of total crimes respectively
against children at the national level.

Procuration of Minor Girls (Sec. 366A IPC) 205 cases were reported in the year 2008
as compared to 145 such cases in 2007, accounting for 29.3% increase over 2007.
Andhra Pradesh has reported 48 such cases indicating a share of 33.1 percent at
national level. In absolute numbers, these cases registered a fall to 48 against 60 in
2007 in case of Andhra Pradesh and 9 in 2008 from 32 in 2007 in Uttaranchal. A
minor increase of 0.1 per cent was noticed in Kerala (20 cases in 2007 increased to 21
cases in 2008). 28 cases of ‘Buying of girls’ and 50 cases of ‘Selling of girls’ for
Prostitution were reported in the country during 2007 against 21 and 19 such cases
respectively in 2008. Andhra Pradesh & Delhi with 32.1% each along with
Maharashtra 21.4 accounted for 85.6% (24 cases) of total cases of ‘Buying of Girls’
and West Bengal has accounted for 88.0% (44 cases) of the total cases of ‘Selling of
Girls’ for Prostitution reported in the country. Incidence of kidnapping and abduction
of women and girls recorded an increase of 9.4% from 2004 to 2008.56
There has been a significant rise in kidnapping cases owing to the rising prosperity
together with inadequate law enforcement. In 2006, the number of reported abductions

56
http://ncrb.nic.in/cii2007/cii-2007/CHAP6.pdf,
jumped 52 percent to 23,991, from 15,750 in 2005, ranking India sixth among 10
countries with the worst record for kidnappings, according to the National Crime
Records Bureau.

2009-2011
The following table can be taken into account to understand the level of crime of
kidnapping and abduction in India during the period of 2008-2011 in all India level,
and in states of Haryana, Punjab and Union Territory of Chandigarh.

State and Year 2009 2010 2011

Haryana 916 963 959
Punjab 692 789 681
Chandigarh 40 38 58
India 33860 38440 44664

In 2011 total no. of cases under Indian Penal Code relating to offence of Kidnapping
and abduction were 44664 which amounted to 1.9 percent of total crimes under Indian
Penal Code. Out of these in 2011, Kidnapping and abduction of women and girls
amounted to 35565 which was 1.5 percent of total no. of crimes in Indian Penal Code.
Rate of crime was 3.7 percent for kidnapping and abduction whereas chargesheeting
rate and convictional rate was 70.5 percent and 27.3 percent respectively. 57
Further the following table can be very helpful in understanding and comparing the
data of states of Haryana, Punjab and Chandigarh regarding Kidnapping and
Abduction during the year of 201158:
State/U Cases No. of Cases Cases Total Cases Cases Cases
T Report cases not declar cases convic acquitte pendi
ed withdraw investiga ed where ted d and ng
during n by the ted or in false chargsh dischar Trial
the govt. which on eet laid ged at the

57
http://ncrb.nic.in/CD-CII2011/cii-2011/figure%20at%20a%20glance.pdf and http://ncrb.nic.in/cii2007/cii-
2007/CHAP6.pdf
58
http://ncrb.nic.in/CD-CII2011/Additional%20table%20cii%202011/Cases%20registered%20and%20their
%20disposal%20under%20IPC%20crimes%20during%20-%202011%20final.xls
 year during investiga accou and end
Investiga tion was nt of final of
tion refused mista report year
ke of submitt
fact ed
or
law
Haryana 959 0 0 300 625 432 72 360
Punjab 681 0 0 174 376 60 176 1357
Chandig 58 0 0 15 32 10 14 50
arh
India 44664 197 192 966 32388 4001 10680 9507
4

BIBLIOGRAPHY

BOOKS REFERRED:
 1. DhirajLal Ratanlal, “Indian Penal Code”, LexisNexis Butterworth’s Wadhwa,

Nagpur, 13th Edition (Reprint 2004 Edition), 2008.

2. Singh K.K and Bagga R., “Indian Penal Code”, The Law Book Company,

Allahabad, 2nd edition, 1994

3. Mishra S.N., “Indian Penal Code”, Central Law Publications, Allahabad,14th

Edition. 2006.

4. Walker, “Oxford Companion to Law”, Oxford Publications, New Delhi, 20 th

Edition, 1980,

ONLINE SOURCES:

1. http://www.indiatogether.org/2006/oct/law-immoral.htm.

2. http://www.manupatra.com.

3. http://ncrb.nic.in/cii2007/cii-2007/CHAP6.pdf.

4. http://ncrb.nic.in/CD-CII2011/cii-2011/figure%20at%20a%20glance.pdf

Other References:

1. Black’s law Dictionary