DIFFERENCE BETWEEN THE OFFENCE OF KIDNAPPING AND ABDUCTION
1. INTRODUCTION.
Kidnapping involves taking a child without consent, either from Pakistan or from their guardian. Abduction means forcibly or deceitfully moving someone and is only a crime if intended for harm. These laws protect children and their guardians' rights.
2. RELEVANT PROVISION.
(i). Sections 359, 360, 361, 363, 364,364-A,365, 365-A & 365-B deal the term Kidnapping.
(ii). Sections 362, 364, 364-A, 365, 365-A & 365-B deal the term Abduction.
3. MEANING OF KIDNAPPING.
“The literal meaning of kidnapping is child stealing.”
4. DEFINITION OF KIDNAPPING.
“Kidnapping means carrying a person, without his consent, using force, threats or fraud.”
5. KINDS OF KIDNAPPING UNDER SECTION 359.
There are two kinds of kidnapping under the Pakistan penal code.
(I). KIDNAPPING FROM PAKISTAN UNDER SECTION 360.
(II). KIDNAPPING FROM LAWFUL GUARDIANSHIP UNDER SECTION 361.
6. 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 his behalf of the person is said to kidnap that person from Pakistan.
(I). Explanation.
This offense may be committed concerning minors as well as grown-up persons, but the kidnapping must be done without the consent of the person kidnapped.
(II). Scope.
Offense about kidnapping from Pakistan may be committed on a grown-up person or a minor by conveying him or her beyond the limits of Pakistan.
(III). INGREDIENTS OF KIDNAPPING FROM PAKISTAN.
(i). The person kidnapped was in Pakistan.
(ii). The accused conveyed him beyond the limits of Pakistan.
(iii). The accused did so without that person's consent.
(iv). With the consent of some other person legally authorized to consent on behalf of that person.
7. KIDNAPPING FROM LAWFUL GUARDIANSHIP UNDER SECTION 361.
If someone takes or tricks a boy under 14, a girl under 16, or someone who cannot think, without permission from their guardian, it is called kidnapping from lawful guardianship.
(I). Explanation.
The words “Lawful Guardian” in this section include any person lawfully entrusted with the care or study of such minor or other person.
(II). OBJECT OF SECTION 361.
The object of this section is at least as much to protect children of tender age from being abducted or seduced for improper purposes, and for the protection of the rights of parents and guardians having the lawful charge or custody of minors or insane persons.
(III). INGREDIENTS OF KIDNAPPING FROM LAWFUL GUARDIANSHIP.
(i). The person kidnapped was a minor under 14 years old in the case of a male.
(ii). The person kidnapped was a minor under 16 years old in case of being a female.
(iii). The person was in keeping of lawful guardian.
(iv). The accused took or enticed such person out of such keeping.
(v). He did so without the consent of the lawful guardian.
8. INGREDIENTS OF KIDNAPPING.
(i). Taking Or Enticing.
There must be a taking enticing away of the child or a person of unsound mind.
(a). Taking Meaning.
Taking involves leading, escorting, or having someone, not just physically but also through arranged meetings, away from their guardian's control.
(b). Enticing.
Enticing means persuading someone to leave their guardian by sparking their interest or desire, making them willing to go.
(ii). Minor Or Unsound Mind.
Kidnapping involves a minor under 14 (if male) or under 16 (if female), or someone of unsound mind.
(iii). Out of The Keeping of Lawful Guardianship.
So that an offense 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.
(a). Age of Minor
Such minors must be under fourteen years of age if a male or under sixteen years of age if a female.
(b). Keeping out of Lawful Guardianship.
The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind. The word keeping implies neither apprehension nor detention but rather maintenance, protection, and control.
(c). Lawful Guardian.
The word lawful guardian in this section includes any person lawfully entrusted with the care or custody of such minor or other person.
(iv). Without Consent of Guardian.
Kidnapping a minor without the guardian's consent is a crime, even if the minor agrees. Consent given after the act doesn't count. For example, if "A" tricks a girl's parents and takes her, it's kidnapping once they leave. However, if someone honestly thinks they have the right to take a child, believing they are the parent or guardian, it's not considered kidnapping unless done for the wrong reasons.
9. PROOF OF KIDNAPPING.
(I). Kidnapping From Pakistan
In the case of kidnapping from Pakistan, the following needs to be proved.
(i). The person kidnapped was in Pakistan.
(ii). The accused conveyed him beyond Pakistan.
(iii). 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 things need to be proved.
- (i). That the person kidnapped was a minor under 14 years, if a male, and under 16 years, if a female.
- (ii). That he was insane.
- (iii). That the person was in the keeping of a lawful guardian.
- (iv). That the accused took or enticed such person out of such keeping.
- (v). That he did so without the consent of the lawful guardian.
10. PUNISHMENT OF KIDNAPPING UNDER SECTION 363.
Whoever kidnaps any person from Pakistan or lawful guardianship shall be punished with imprisonment of either description for a term that may extend to 7 years and shall also be liable to a fine.
(i). Fine.
It is not essential to impose a sentence of fine along with a sentence of imprisonment. But a sentence of fine alone is illegal.
(ii). Appeal.
Where the conviction was contrary to law, an appeal was filed 2 years after the conviction was entertained, and the delay was condoned.
11. ABDUCTION.
(I). Meaning of Abduction.
“Abduction means the unlawful carrying away of a woman for marriage or immoral intercourse.”
(II). Definition of Abduction Under Sectio 362.
“Whoever by force compels or by any deceitful means induces any person to go from any place is said to abduct that person.”
(III). INGREDIENTS OF OFFENCE OF ABDUCTION.
The two main ingredients of the offense of abduction are as under.
(i). Compulsory or Inducement.
There must have been a forceful compulsion or inducement by deceitful means to any person by the accused with the intent to abduct him or her. The offense of abduction is not complete unless there is forceful compulsion or inducement by deceitful means.
(ii). To Go From Any Place.
Such a person must have been induced to go from any place. As in the absence of this element, there can be no abduction under this section. So the object of such compulsion or inducement must be the place of a person from any place.
(IV). NATURE OF ABDUCTION.
The offense of abduction is a continuing offense, 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.
(V). PROOF OF ABDUCTION.
An offence of abduction can be said to have been committed only if the prosecution can prove against the alleged offender that he has by force compelled or b deceitful means induced another person to go from any place.
12. KIDNAPPING OR ABDUCTING TO MURDER UNDER SECTION 364.
Whoever kidnaps or abducts any person to murder or to dispose of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term up to 10 years and a fine shall also be imposed.
13. KIDNAPPING OR ABDUCTING A PERSON UNDER THE AGE OF 14 YEARS UNDER SECTION 364-A.
Whoever kidnaps or abducts any person under the age of 14 years, to murder, grievous hurt, slavery or to the lust of any person, shall be punished with death or imprisonment for life or with rigorous imprisonment for a term from 7 years up to 14 years.
14. KIDNAPPING OR ABDUCTING WITH INTENT SECRETLY AND WRONGLY TO CONFINE A PERSON UNDER SECTION 365.
If a person kidnaps or abducts any person to impose secret and wrongful confinement, he will be punished for a term of up to 7 years plus a fine.
15. KIDNAPPING OR ABDUCTING FOR EXTORTING PROPERTY, VALUABLE SECURITY UNDER SECTION 365-A.
Kidnapping or abducting someone to demand money or property for their release can lead to a death penalty, life imprisonment, and loss of property.
16. KIDNAPPING, ABDUCTING, OR INDUCTING WOMEN TO COMPEL FOR MARRIAGE ETC.
Kidnapping or abducting a woman to force her into marriage or illicit acts leads to life imprisonment and a fine. This also applies to forcing a woman to move for such purposes through intimidation or coercion.
17. DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION.
KIDNAPPING ABDUCTION.
(i). Relevant Provisions.
Section 359,360,361 and 363 Section 362. 364, 364-A & 365 for
for kidnapping. Abduction.
(ii). As To Age
It is committed only in respect It is committed in of a minor under 14 years of respect of any person of
age if a male and under 16 any age. years of age if a female or a Person of unsound mind.
(iii). As To Guardian.
The person kidnapped is Not necessarily Removed from lawful Guardianship. A child Without a guardian cannot be kidnapped.
(iv). As To Means Used.
The minor or the person of Force, compulsion, or unsound mind is simply a deceitful means that is taken away or enticed to go employed. with the kidnapper. The means employed may be innocent.
(v). Scope.
Kidnapping is committed only Abduction is committed in respect of a minor or person in respect of any person of unsound mind or if it is from of any age. Pakistan, of person of any age.
(vi). As To Continuation
It is not a continuing offense. A person is being The offense is completely as abducted both when he soon as the minor is removed is first taken from any from the custody of his or her place and also when he guardian. is removed from one place to another place.
(vii). As To Place
The place to which the victim The place is not taken must be outside the important. limits of Pakistan.
(viii). Nature of Offence.
It is a substantive offense. Not punishable by itself unless accompanied by some criminal intent.
(ix). Kinds.
There are two kinds of There is only one kind kidnapping one is kidnapping or abduction. from guardianship and the second is kidnapping from Pakistan.
18. CONCLUSION.
Kidnapping applies to males under 14, females under 16, or those of unsound mind, while abduction can involve anyone regardless of age. Kidnapping is a main offense, but abduction isn't punishable unless linked with another crime.
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