The major difference between abduction and kidnapping is that the abduction is an offence which relates to any person whereas kidnapping is an offence which relates only to minor i.e. 16 years age of boys and 18 years age of girls.
Kidnapping has been codified as a criminal offence under the Indian Penal Code,1860. Section 359-363 deals with the offence of Kidnapping. Kidnapping is of two kind’s viz., kidnapping from India and kidnapping from lawful guardianship.
As per Section 360 - Kidnapping from India means, “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.”
Punishment for kidnapping from India is provided in Section 363. As per Section 363, “Whoever kidnaps any person from India 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.”
As per Section 361 Kidnapping from Lawful Guardianship means, “Whoever takes or entices any minor under (sixteen) years of age if a male, or under-(eighteen) years of age of 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.”
Section 361 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 lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.
“Lawful Guardian” includes any person who is lawfully entrusted with care and custody of such minor or other person.
Section 362 in The Indian Penal Code – Abduction - Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that 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. In the case of Abduction, there is no such thing as age.
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.
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 a force, compulsion, or deceitful means.
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 a person is unable to provide for free consent. In the case of Abduction, the consent of the person abducted condones the accused from the offence so charged against him/her.
In case of Kidnapping, the intention of the person kidnapping a minor is immaterial so as to the crime committed by the accused. In the case of Abduction, the intention of the person abducting is a very important factor in determining the guilt of the accused person.
Kidnapping is a substantive offence. Section 363 of the IPC provides for punishment for kidnapping for a descriptive term which may extend to seven years and he/she shall also be liable for fine. 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.
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.
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