LAWS RELATING TO THE OFFENCE OF ABDUCTION

UNDER THE IPC – A DETAILED STUDY

SUBMITTED BY -

NISHKARSH KOTHARI
UID - SM0118035
nd
2 YEAR (SEMESTER IV)

FACULTY IN-CHARGE -
MS. NIKITA BAROOAH

INDIAN PENAL CODE

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY

GUWAHATI, ASSAM

26th May, 2020

 TABLE OF CONTENTS

CONTENTS PAGE NO.

1. INTRODUCTION 1-5
1.1 AIM AND OBJECTIVES OF WORK
1.2 RESEARCH QUESTIONS
1.3 SCOPE AND LIMITATIONS OF WORK
1.4 RESEARCH METHODOLOGY
1.5 REVIEW OF LITERATURE
1.6 TABLE OF ABBREVIATIONS
1.7 TABLE OF CASES
1.8 TABLE OF STATUTES

2. ABDUCTION AS AN OFFENCE 6-10

2.1 TYPES OF ABDUCTION
2.1.1 ABDUCTION WITH INTENTION TO MURDER
2.1.2 ABDUCTION WITH INTENT TO CONFINE PERSON
2.1.3 ABDUCTION WITH INTENT TO COMPEL MARRIAGE, ETC.
2.1.4 ABDUCTION WITH INTENT TO FORCE
SLAVERY, GRIEVOUS HURT
2.2 DIFFERENCE BETWEEN ABDUCTION AND KIDNAPPING
2.2.1 AGE IF AGGRIEVED PERSON
2.2.2 LEGAL GUARDIANSHIP
2.2.3 MEANS
2.2.4 CONSENT
2.2.5 INTENT

3. CASE LAWS 11-14

3.1 ALLU V. EMPEROR
3.2 NANHUA DHIMAR V. EMPEROR
3.3 ABHAYA JENA V. STATE OF ORISSA
3.4 FIYAZ AHMED V. STATE OF BIHAR
3.5 BISWANATH MALLICK V. STATE OF ORISSA
3.6 SUCHA SINGH V. STATE OF PUNJAB
3.7 R. V. CORT
3.8 GABBU V. STATE OF MP

4. CONCLUSION 15

5. BIBLIOGRAPHY 16
 1. INTRODUCTION

Section 362 of the Indian Penal Code, 1860, states

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.1

Abduction is an offense in which a person is forcibly taken away and moved from one place
to another against his/her will. Using of force in action is the main essential of abduction.
Section 362 says that whoever by force compels or by any deceitful induces any person to go
from any place, is said to abduct that person.2 This section may read with section 364, 365
and 360.3

To constitute an offense under this segment the accompanying conditions must exist.

1. There must be tempting of a minor, or a man of unsound personality;

2. Such minor must be under 16 years old, if a male, or under 18 years old, if a female;
3. Removing or luring must be from the keeping of the legal gatekeeper of such minor or
individual of unsound personality; and
4. Taking or luring must be without the assent of such gatekeeper.

Types of abductions vary, out of which child abduction is primary. There should be either use
of force or use of fraud on the person who has been inducted.

When there is an application of force or fraud or any deceitful means which is used to compel
a person to go from one place to another, amounts to an offense under this section. However,
the Comment under S. 3624 States that the mentioned section merely gives a definition of the
word “abduction” which occurs in some of the penal provisions which follow. There is no
such as offence as abduction under the code, but abduction with certain intent is an offence.
Force or Fraud is essential.5

1
S. 362; Indian Penal Code, 1860
2
Ibid.
3
S. 364, 365, 360; Indian Penal Code, 1860
4
S. 362, COMMENT; Indian Penal Code, 1860
5
Ratanlal & Dhirajlal; The Indian Penal Code, 35th Edition; Pg. 846

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Abduction is said to be a continuing offense and not only the person who first moved the
abductee from one place to another. Every person involved in the whole process of abduction
will also be equally liable.6

The following work on abduction will focus on such tenets as has been enumerated in the
aforementioned paragraphs. It will analyse the various essentials and the existing laws
pertaining to the offence of Abduction under the Indian Penal Code.

1.1 AIM AND OBJECTIVES OF WORK

The Aims and Objectives of this work are as follows -

• To understand the meaning and definition of Abduction.

• To look into the essentials of what constitutes an offence of abduction.

• To analyse the differences between ‘Kidnapping’ and ‘Abduction’.

• To elaborate upon the different types of offences pertaining to abduction.

• To throw light upon various relevant case laws.

1.2 RESEARCH QUESTIONS

1. What is abduction?

2. What are the essential elements of an offence of abduction?

3. What is the difference between abduction and kidnapping?

4. What are the various types of abduction?

1.3 SCOPE AND LIMITATIONS OF WORK

The Scope of this particular paper is wide as there are many case laws and relevant provisions
pertaining to the offence of abduction. The sole limitation of the project work is that there is

6
Ganga Devi, (1914) 12 ALJR 91; Nanhua Dhimar (1930) 53 All 140

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difficulty in making a very clear cut distinction between the offences of Abduction and
Kidnapping in lay-man terms. Abduction, however a separate offence, is often perceived as
one and amongst the crime of kidnapping.

1.4 RESEARCH METHODOLOGY

The researcher has employed the Doctrinal Method of Explanatory Research Design for the
in- depth study of the offence of abduction.

Explanatory Research Design: This method has been employed in order to understand,
analyse and comprehensively explain the nature and concept of Abduction.

For the collection of information for this research work, secondary sources of data such as
books, articles and pre-set norms and case laws have been referred.

1.5 REVIEW OF LITERATURE

1. Ratanlal & Dhirajlal; The Indian Penal Code, 35th Edition –

This classic, is a comprehensive section-wise commentary on the Indian Penal Code.
This book is an indispensable reference for judges, lawyers, research scholars,
students, judicial and police training academies (national and state), police
departments, etc. Relevant judgements and legal provisos have been provided with in
details.

2. K. D. Gaur; Textbook on Indian Penal Code; 6th Edition –

Text Book on the Indian Penal Code by Professor K D Gaur, a distinguished scholar
and an eminent jurist of International repute is a classic work in criminal law. With
the help of examples, illustrations and elucidatory notes complex subjects have been
explained in simple style so that readers could grasp the subjects easily. Excellent
Annexures dealing with the rights of the accused, victims of crime and guidelines to
effective study and understanding of criminal law have enhanced the worth and utility
of the book.

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1.6 TABLE OF ABBREVIATIONS

SL. ABBREVIATION FULL FORM

NO.
1. AIR All India Reporter

2. CrLJ Criminal Law Journal

3. Ker Kerela

4. Lah. Lahore

5. MP Madhya Pradesh

6. Ori Orissa

7. SC Supreme Court

8. SCC Supreme Court Cases

9. UP Uttar Pradesh

10. v. Versus

11. WLR Wales Law Reporter

1.7 TABLE OF CASES

SL.
CASE NAME
NO. CITATION

1. Abhaya Jena v. State of Orissa (1977) Crimes 531 (ORI)

2. Allu v. Emperor AIR 1925 Lah 512

3. Biswanath Mallick v. State of Orissa 1995 CrLJ 1416 (Ori)

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 AIR 1990 SC 2147
4. Fiyaz Ahmed v. State of Bihar

5. Gabbu v. State of MP AIR 2006 SC 2461

R. v. Cort [2003] 3 WLR 1300

6.

7. Sardar Hussain v. State of UP AIR 1988 SC 1766

8. State of MP v. Lattora (2003) 11 SCC 761

9. Sucha Singh v. State of Punjab 2001 J 1734 (SC)

Suresh Babu v. State of Kerela, 2001 CrLJ 1483 (Ker)

10.

1.8 TABLE OF STATUTES

SL. NO. TITLE

1. Indian Penal Code, 1860

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 2. ABDCUTION AS AN OFFENCE

Section 362 of the Indian Penal Code contains two essentials for the offence of abduction.

1. Forcible compulsion or inducement by deceitful means.7

2. The object of such compulsion or inducement must be going of a person from any place.

Thus abduction is an offence under sec. 362. If by force a person compels or even by
fraudulent means induce any other person to go from any place taken is called abduction.
Abduction likewise, can be conferred in regard of any individual independent of his age.
Assent, assuming openly and intentionally given, supports the offense. Abduction is
additionally a proceeding with offense and might be abetted.

For Example- If a woman is being carried away by using force from one place to another
against her will, it will amount to abduction even if she is been carried away to be restored
back home.

Abduction is an offence if it is done with the intention to commit murder, wrongfully confine
a person, and induce a woman to compel her marriage, subject a person to grievous hurt,
slavery, etc. The term ‘by force’ suggests that there should be actual use of force and not a
mere show/threat of force. It would be an offence to carry a grown-up woman by force
against her own will even with the object of restoring her to her husband.8 The term
‘deceitful’ suggests means and methods by which a person is misled or led to believe in
something false. The expression deceitful as used here, is wide enough to include inducing a
girl to leave her guardian’s house on a pretext. It also implies the use of misrepresentation
and fraud by act or conduct.9 The offence of abduction is committed as many times as the
person is moved from one place to another. So, for instance A is taken from her house and
then sent to city X, from where she is moved to city Y. In this case, abduction is committed
twice; once, when she was moved from her house and then again when she was moved from
city X to city Y.

7
Suresh Babu v. State of Kerela, 2001 CrLJ 1483 (Ker)
8
Allu v. Emperor, AIR 1925 Lah 512
9
R. v. Cort, [2003] 3 WLR 1300

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Illustration – A is a minor wife of B. C takes her forcibly without the knowledge of B and
also keeps her in his house for a period of two months, where she runs away with X to Agra
who is C’s neighbour and both of them were arrested on a report of B. In this case, C is liable
for the offence of abduction and X will be liable if he had taken A for some illegal purpose.

2.1 TYPES OF ABDUCTION

Abduction as an offence has various connotations and variations. Abduction pure and simple
is not an offense. It is an auxiliary act not punishable in itself, but when it is accompanied by
a certain intention to commit another offense, it per se becomes punishable as an offense.

2.1.1 ABDUCTION WITH INTENTION TO MURDER

S. 364 –Kidnapping or Abducting in order to Murder10

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.

Under this section, it is sufficient to show that abduction/kidnapping was done with the
intention to commit murder. Actual commission of murder is not necessary. If no evidence is
available on this score, accused cannot be convicted under this section.11

In a particular case, an abducted victim was murdered later on. It was held that the court can,
depending on the factual situation, draw the presumption that the abductors are responsible
for the murder. It would be their responsibility to explain to the court what they had done to
the victim.12 Where abduction of the victim is proved and the victim is found murdered soon
after abduction, the Supreme Court stated that it is for the accused to satisfy the court as to
how the abducted victim was dealt with.13

10
S. 364, Indian Penal Code, 1860
11
Sardar Hussain v. State of UP, AIR 1988 SC 1766
12
Sucha Singh v. State of Punjab, 2001 CrLJ 1734 (SC)
13
State of MP v. Lattora, (2003) 11 SCC 761

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2.1.2 ABDUCTION WITH INTENT TO CONFINE PERSON

S. 365 – Kidnapping or Abducting with intent secretly wrongfully to confine person14

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.

In a particular case, where there was ample evidence to show that the victim woman was
abducted from her house and then taken to different places which included confinement to
one place till she was recovered by the police, it was held that the accused could be convicted
under this section.15

2.1.3 ABDUCTION WITH INTENT TO COMPEL MARRIAGE, ETC.

S. 366 – Kidnapping, Abducting or Inducing woman to compel her marriage, etc.16

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 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 that she will be, forced or seduced to illicit intercourse
with another person shall also be punishable as aforesaid.

It is necessary for the prosecution to prove that the accused induced or forced the
complainant woman to go from one place to another via deceitful means with the intent to
seduce her for illicit intercourse or the accused knew that such act was likely to lead to illicit
intercourse, or for marriage. Mere abduction wouldn’t make the accused liable under this
section.17

14
S. 365, Indian Penal Code, 1860
15
Fiyaz Ahmed v. State of Bihar, AIR 1990 SC 2147
16
S. 365, Indian Penal Code, 1860
17
Gabbu v. State of MP, AIR 2006 SC 2461

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2.1.4 ABDUCTION WITH INTENT TO FORCE SLAVERY, GRIEVOUS HURT

S. 367 – Kidnapping or abducting in order to subject person to grievous hurt, slavery, etc18

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 subjected to grievous hurt, or slavery, or to
the 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.

2.2 DIFFERENCE BETWEEN ABDUCTION AND KIDNAPPING

The offenses of abduction and kidnapping are different from each other in several ways.
Some of them have been enumerated in the following paragraphs. Interestingly, the penal
provisions and punishments for both of them, however, to a very large extent, unified. It is
well known that the ingredients of the two offences – ‘kidnapping’ and ‘abduction’ are
entirely different.19

2.2.1 AGE OF AGGERIEVED 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 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

2.2.2 LEGAL GUARDIANSHIP

In the Indian legal context, 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

18
S. 367, Indian Penal Code, 1860
19
Abhaya Jena v. State of Orissa, (1977) Crimes 531 (ORI)

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Abduction considers only the person who has been abducted, lawful guardianship does not
come into the picture.

2.2.3 MEANS

Kidnapping involves taking away or enticement by the kidnapper. The means used for such
purpose is irrelevant. On the other hand, the means used in case of abduction may be force,
compulsion, or deceitful means.20

2.2.4 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. Whether the consent of the
person was taken or enticed in a kidnapping is immaterial. In case of Abduction, the consent
of the person abducted condones the accused from the offence so charged against him/her.21

2.2.5 INTENT

In case of a kidnapping, the intention of the person kidnapping a minor is immaterial so as to

the crime committed by the accused. In case of Abduction, the intention of the person
abducting is a very important factor in determining the guilt of the accused person. Abduction
is an auxiliary act, not punishable by itself, but made criminal only when it is done with one
or the other intents.22

20
Ratanlal & Dhirajlal; The Indian Penal Code, 35th Edition; Pg. 847
21
Ibid.
22
Biswanath Mallick v. State of Orissa, 1995 CrLJ 1416 (Ori)

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 3. CASE LAWS

The key to understanding the offence of abduction in its entirety is by trying to read some
relevant and landmark case judgements that have been made through the course of time. They
give us a detailed insight and perspective on what a particular legal tenet is.

3.1 ALLU V. EMPEROR23

It was in this case that the word ‘force’ was looked into with a deeper understanding and
what it could actually connote. It was held that in view of the definition, the word, ‘force’
connotes actual force and not merely show or threat of force. It would be an offence to carry
a grown-up woman by force against her own will even with the object of restoring her to her
husband. A clear distinction was made between force and threat of using force.

3.2 NANHUA DHIMAR V. EMPEROR24

In the following case, abduction as a continuing offence was understood in details and was
held in the same effect by the court. It was held that the offence of kidnapping from lawful
guardianship is not a continuing offence. As soon as the minor is actually removed out of the
custody of his or her guardian the offence is completed. The offence is not a continuing one
as long as the minor is kept out of guardianship. But unlike kidnapping abduction is a
continuing offence, and has been held to be a continuing offence in Ganga Dei v. Emperor25.
It has been held in these cases that a girl is being abducted not only when she is first taken
from any place put also when she is removed from one place to another. There may be
abduction without the removal of a person from lawful guardianship.

3.3 ABHAYA JENA V. STATE OF ORISSA26

The offenses of abduction and kidnapping are different from each other in several ways.
Some of them have been enumerated in the following paragraphs. Interestingly, the penal
provisions and punishments for both of them, however, to a very large extent, unified. It is

23
AIR 1925 Lah 512
24
(1930) 53 All 140
25
[1914] 15 Cr. L.J. 154
26
(1977) Crimes 531 (ORI)

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well known that the ingredients of the two offences – ‘kidnapping’ and ‘abduction’ are
entirely different.

3.4 FIYAZ AHMED V. STATE OF BIHAR27

The only point which was urged in support of this appeal was that since there is no evidence
on record to show that the woman - Maya Devi was abducted to compel her either to marry
against her wish or to submit to sexual intercourse against her wish, the conviction of the
accused under Section 366 of the Penal Code was not warranted by law.

However, the appellate court found that there was sufficient evidence on record to show that
Maya Devi was abducted from her house when accused Nos. 1 and 2 had taken her against
her wish and under threat up to Patna Railway Station and accused Nos. 3 and 4 had
thereafter carried her similarly under threat from Patna Railway Station to village Ajaipur in
Bihar Sharif. She was also confined in a house at Ajaipur village till she was recovered by the
police after some hours. That would squarely bring the accused within the clutches
of Sections 365 and 368 of I.P.C. The offences under these two sections are lesser offences
compared to offence under Section 366 and, therefore, on the evidence before the Court, they
are liable to be convicted for the said offences.

3.5 BISWANATH MALLICK V. STATE OF ORISSA28

The following case was a very essential case to understand the difference between
kidnapping and abduction as two separate criminal offences. It also explained the importance
and viability of the concept of consent and these two different, yet correlated types of
offences. It was held that, in case of a kidnapping, the intention of the person kidnapping a
minor is immaterial so as to the crime committed by the accused. In case of Abduction, the
intention of the person abducting is a very important factor in determining the guilt of the
accused person. Abduction is an auxiliary act, not punishable by itself, but made criminal
only when it is done with one or the other intents.

27
AIR 1990 SC 2147
28
1995 CrLJ 1416 (Ori)

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3.6 SUCHA SINGH V. STATE OF PUNJAB29

In this particular case, an abducted victim was murdered later on. It was held that the court
can, depending on the factual situation, draw the presumption that the abductors are
responsible for the murder. It would be their responsibility to explain to the court what they
had done to the victim. Thus, there would be an adverse burden of proof. The general thumb
rule in most of the criminal cases is that the prosecution must always stand on its own legs.
However, in this case, the accused will have to bear the burden of proving innocence instead
of the prosecution bearing the burden of proving them guilty, provided that the facts are clear
that such a situation is required. In the case of State of MP v. Lattora30, it was further held
that where abduction of the victim is proved and the victim is found murdered soon after
abduction, the Supreme Court stated that it is for the accused to satisfy the court as to how the
abducted victim was dealt with.

3.7 R. V. CORT31

The defendant in this particular case had appealed a conviction for kidnapping, saying the
victims’ absence of consent was not fundamental. Driving his car, the accused had stopped at
bus stops, inviting women to get in saying falsely that the bus had been cancelled. He had
with him articles clearly intended to facilitate rape. Following Regina v. D32, it was held that
the victims’ consent had clearly been obtained by fraud. It had been submitted that as in cases
of assault and rape, in law only mistakes as to identity or the nature of the act, could vitiate a
consent. That contention was rejected. The nature of the consent in rape and assault cases was
different. The absence of consent may not need to be proved. ‘It is difficult to see how one
could ever consent to that once fraud was indeed established. The ‘nature’ of the act here is
therefore taking the complainant away by fraud. The complainant did not consent to that
event.

29
2001 CrLJ 1734 (SC)
30
(2003) 11 SCC 761
31
[2003] 3 WLR 1300
32
[1991] 1 S.C.R. 742

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3.8 GABBU V. STATE OF MP33

This case ascertained that it is necessary for the prosecution to prove that the accused induced
or forced the complainant woman to go from one place to another via deceitful means with
the intent to seduce her for illicit intercourse or the accused knew that such act was likely to
lead to illicit intercourse, or for marriage. Mere abduction wouldn’t make the accused liable
under this section.

It was held that In overall consideration of the material placed on record by the prosecution,
the prosecution had not really proved that the accused-appellant had committed an offence
under Section 366 of the IPC. There was doubt as to the place of incident and the motive of
the accused in taking away the prosecutrix. 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 was considered
hard to believe. Thus, appeal was allowed and the accused was acquitted.

33
AIR 2006 SC 246

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 4. CONCLUSION

Abduction is a crime under Indian law that is not punishable so it becomes more important to
rightly solve the cases of abduction by giving justice to the person who has been abducted.

Kidnapping and abduction are particular types of offences under the law of crime. Under
these offences, a person is taken away secretly or forcible without his consent or without the
consent. Kidnapping and abduction are particular types of offences under the law of crime.
Under these offences, a person is taken away secretly or forcible without his consent or
without the consent of authorised guardian.

In criminal law, kidnapping is the unlawful diverting and imprisonment of a man without
wanting to. In this way, it is a composite wrongdoing. It can likewise be characterized as
false detainment by methods for snatching, both of which are separate wrongdoings that
when carried out all the while upon a similar individual converge as the single wrongdoing of
kidnapping. The kidnapping component is ordinarily however not really led by methods for
power or dread.

However, when it comes to abduction, it is different from kidnapping with respect to its
essentials pertaining to intent, relevance of consent, age and legal guardianship, and so on. It
is essential, thus, to differentiate between kidnapping and abduction as criminal offences as
both of them constitute separate legal offences.

As seen from the various case laws, it can also be understood that the courts have over time
clarified more on what abduction is and how cases related to abduction are dealt with. The
Indian Penal code in itself is very clear about the punishments and essentials of the crime,
thus there is little confusion or ambiguity regarding the same, as a separate offence.

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 5. BIBLIOGRAPHY

BOOKS –

• Ratanlal & Dhirajlal; The Indian Penal Code, 35th Edition

• K. D. Gaur; Textbook on Indian Penal Code; 6th Edition

JUDGEMENT DATABASES –

• SCC Online
• Supreme Today
• Indian Kanoon

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