Kidnapping And Abduction
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Q. Define and differentiate between Kidnapping and abduction. (2002)(2001),(2000),(1999)
Under the P.P.C, Kidnapping has been declared a substantive offence. It is of two kinds and kidnapping from guardianship is completed as soon as the minor is actually taken out of the custody of his or her guardian while the section 362 of P.P.C gives a definition of abduction which occurs in some of the penal provision which follow.
2. Relevant Provisions:
Following are the relevant provisions P.P.C regarding the concerned.
Section 360,361 and 363 for Kidnapping
Section 362 for abduction
The literal meaning of Kidnapping is child stealing.
4. Kinds Of Kidnapping U/Sec 359:
Kidnapping is f two kinds
(i) Kidnapping from Pakistan
(ii) Kidnapping from lawful guardianship
(I) Kidnapping From Pakistan U/Sec 360:
Whoever conveys any person beyond the limits of Pakistan without the consent of that person or of some person or of some person legally authorized to consent on behalf of that person is said to Kidnap that person from Pakistan.
The offence of Kidnapping out of Pakistan may be committed in respect of minors as well as grown up persons.
Following are the essential ingredients of sec 360.
(i) Conveying of any person:
There must be conveying of any person beyond the limits of Pakistan, from Pakistan.
Such conveying must be without the consent of that person or of some person, legally authorized to consent on behalf of that person.
Consent means as active will in the mind of a person to permit the doing of the act complained of and knowledge of what is to be done, or of the nature of the act that is being done.
- Meaning of Consent:
(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, 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.
Following are the essential ingredients of sec. 361.
(i)Taking or Enticing:
There must be taking or enticing away a minor or a person of unsound mind. The word taking means to capturing. Taking under this section does not mean mere physical taking but also includes constructive possession of guardian e.g. meeting at an appointed place outside.
Enticing is an act of the accused by which the person Kidnapped is induced of his own accord to go to unsound mind.
(ii)Minor or Person of Unsound Mind:
The offence under this section may be committed in respect of either a minor or a person of unsound mind.
Such minor must be under fourteen years of age, if a male or under sixteen years of age, if a female.
- Age of Minor:
(iii)Keeping Out of Lawful Guardianship:
The taking or enticing must be out of the keeping of the lawful guarding of such minor person of unsound mind. The word keeping implies neither apprehension nor detention but rather maintenance, protection and control.
a. Lawful Guardian:
According to explanation to section 361 P.P.C, the words lawful guarding include any person lawfully entrusted with the care or custody of such minor other person the explanation is intended to extend the protection given to parents, any person lawfully entrusted with the care or custody of such minor or other person.
The expression “Lawfully entrusted” signifies that the care and custody of a minor should have arisen in some lawful manner.
2001 P.C.R. L.J. 31
It was held that father of child nature Guardion along with the mother can never be ascribed or attributed the offence of Kidnapping of his own child.
(iv)Without consent of Guardian:
The taking or enticing must be without the consent of guardian. The consent of minor or person of unsound mind is immaterial.
This section does not extend to the act of any person who in good faith believes himself:
- ‘A’ enticed “B’ a minor girl to come out of the house and sit in the car with him, so that he might drive away with her. The offence of Kidnapping was complete when ’B’ drove away with her.
(i)to be of an illegitimate child or
(ii)To be entitled to the lawful custody of such child unless such act is committed for an immoral or unlawful purpose.
Sec. 361 has two fold objects
- Object Of Sec. 361:
(i) To protect children of tender age from being abducted or seduced for improper purposes,
(ii) To protect the rights of parents and guardians having the lawful charge or custody of minors or insane persons.
5. Punishment U/Sec 363:
Whoever kidnaps any persons 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.
(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.
(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.
Section 362 merely gives a definition of the word abduction which occurs in some of the penal provision which fellow. It is an auxiliary act, not punishable by itself.
7. Difference Between Kidnapping And Abduction:
(I) Means Used:
In kidnapping the minor is simply taken away. The means used may be innocent.
In abduction force, compulsion or deceitful means are used.
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.
Abduction is committed in respect of any person of any age.:
Kidnapping is of two kinds viz kidnapping from guardianship and kidnapping from Pakistan.
(IV)Effect Of Consent:
In kidnapping from guardianship consent of a person taken or enticed is immaterial.
In person removed, condones abduction.
In kidnapping from Pakistan, the place to which the victim is taken must be outside the limits of Pakistan.
In abduction, the place is not important.
(VI)As To Guardian:
In kidnapping from guardianship a child wither guardian cannot be kidnapping.s
Abduction has reference exclusively to the person abducted.
In kidnapping, the intent of the offender is wholly irrelevant
In abduction, intention is the most important factor.
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.
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.
Kidnapping is a substantive offence.
Abduction not punishment by itself unless accompanied with some criminal intent.
To conclude, I can say, that kidnapping is an offence irrespective of any intent with which it is committed. It is a substantive offence and made punishable as such while the abduction is merely an auxiliary act, not punishable by itself, but made criminal only when it is done with criminal intentions.
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