Kidnapping and abduction in India are criminal offences and are punishable under the Indian Penal Code, 1860. They talk about forcefully taking of a person or a child (from lawful guardianship) with or without consent (depending upon age of the kidnapped/abducted person). Both are given in Chapter 26- Offences affecting the Human Body (section 359 to 366) of The Indian Penal Code.

Kidnapping

Kidnapping means taking away a person against his/her will by use of force, threat or deceit, for any purpose such as for ransom, political or other purposes. The offence of Kidnapping is defined under sections 359, 360 and 361 of the Indian Penal Code.

Section 359 lists two types of Kidnapping:
Kidnapping from India and Kidnapping from lawful Guardianship. Section 360 of IPC says that whoever conveys any person beyond the limits of India without the consent of that person, is said to Kidnap that person from India. Section 361 of IPC states "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 guardian ship[1]." Section 361 is an age-restricted offence. Kidnapping cannot be committed of a major person or a person of sound mind within territory of India.

Punishment for Kidnapping
The punishment for both types of kidnapping under sections 360 and 361 is given in section 363 of Indian Penal Code, 1860. Imprisonment of either description up to seven years shall be awarded to the guilty along with fine.

Abduction

Abduction is defined in section 362 of the Indian Penal Code. Abduction simply means if a person is compelled by someone to go from one place, or is induced by some person to go from one place, that person is said to have commit the offence of abduction. A movement that is caused by forceful compulsion or deceitful means.

Aggravated Forms Of Kidnapping Or Abduction

Other than the above specified provisions, there are other provisons which deal with aggravated form of the offence of kidnapping and abduction and lays down stricter punishments for them.

1. Kidnapping or Maiming a Minor for Begging: Section 363A of the Indian Penal Code talks about the offence of kidnapping or maiming a minor for begging. If a person kidnaps or obtains custody of a minor, so as to employ the minor in begging, that person shall be liable to imprisonment upto 10 years and fine. Maim means to permanently damage a part of the body. If a person maims a minor, so as to employ the minor in begging, he shall be liable under this section and sentenced to life imprisonment and fine.
    
2. Abducting or Kidnapping to Murder: This offence is defined in section 364 of IPC. If a person kidnaps or abducts a person with the intention or knowledge that the person is going to be murdered or is going to be put in danger of being murdered, then the person committing such offence shall be sentenced to life imprisonment or rigorous imprisonment for a term upto 10 years and fine.
    
3. Kidnapping for Ransom: Section 364A of IPC provides for punishment to the whoever threatens to hurt or cause death to that person who he has kidnapped or abducted or detained after kidnapping or abducting in order to compel either the government or some foreign state or any other person to do or abstain from doing an act or pay a certain sum of money. The punishment is death or imprisonment for life, and fine, as mentioned in Section 364A IPC.
    
4. Kidnapping or Abduction with Intent to Secret and Wrongful Confinement: Punishment under this section is imprisonment upto 7 years and fine, if a person kidnaps or abducts other person with the intention of wrongfully or secretly confining them.
    
5. Kidnapping or Abduction a woman to compel her for marriage: Section 366 of Indian Penal Code punishes a person who kidnaps or abducts a woman with the intention to force her into a marriage or with the knowledge that she would be forced into marriage. It also provides punishment for a person who kidnaps or abducts a person to force her into illicit intercourse or has the knowledge that because of such kidnap or abduction, she would be forced into illicit intercourse. The punishment prescribed in this section is imprisonment for up to 10 years and fine.
    
6. Procuration of Minor Girl: Section 366A of the Indian Penal Code prescribes punishment for any person who induces a girl under the age of 18, to go from someplace or to do some act, such that she will be forced or seduced to engage in illicit intercourse with some person. Such inducement must be done intentionally or with the knowledge that she will be forced to engage in such acts. The punishment prescribed for the same is imprisonment for up to ten years and fine.
    
7. Kidnapping or Abducting to subject a person to Grievous Hurt: Section 367 of the Indian Penal Code states that if a person kidnaps or abducts a person so that such person is subjected to or is put in danger of grievous hurt, slavery or unnatural lust of any person, must be punished with either rigorous or simple imprisonment up to 10 years and fine.
    
8. Wrongfully Concealing or Keeping in Confinement a kidnapped or abducted person: Section 368 of the Indian Penal Code provides that if a person knows that a person has been kidnapped or abducted, and wrongfully confides such kidnapped person, would be punished as if he had kidnapped or abducted the person with the intention to keep or confide in him/her.
    
9. Kidnapping or Abducting Child under ten years with the intent to steal from its person: According to Section 369 of Indian Penal Code a person who kidnaps a child under 10 years of age to steal any movable property from him/her, will be punished with imprisonment up to 7 years and also fine.

Kidnapping And Abduction In Other Jurisdictions

1. Kidnapping And Abduction In United Kingdom

   Kidnapping is defined at common law as the taking or carrying away of one person by another, by force or fraud, without the consent of the person taken or carried away and without lawful excuse. It must involve an attack on or loss of that person's liberty. [2]
   
   The House of Lords defined kidnapping as an attack on and infringement of the personal liberty of an individual, consisting of the 'taking or carrying away' of one person by another by force or by fraud, without the consent of the person so taken or carried away and without lawful excuse.[3]
   
   Kidnap and abduction are serious criminal offences which can only be heard in the Crown Court. The sentence for an act of kidnap or abduction will depend on a number of factors. The punishment for kidnapping in the United Kingdom can range from 12 months imprisonment to life imprisonment. Circumstances and facts of each individual case will determine how severe the punishment is. Factors which will be considered when a sentence is decided for kidnap or abduction include
   
   • Any attacks on the victim
   • The level of violence used in the act
   • Whether the victim was taken across a country border
   If a child was the victim of the kidnap or abduction, the offence will be tried under the Child Abduction Act 1984. This is particularly prevalent if the child is taken out of the United Kingdom without the permission or consent of their parent or legal guardian.
    

2. Kidnapping And Abduction In United States

   In Unites States, 18 U.S. Code 1201 states "whoever illegally confines, decoys, kidnaps, abducts, seizes or takes away a person and holds for ransom or prize can be considered as a criminal"[4]. Unlike India, Kidnapping can also be done of a major person. There is no age barrier specified. However, laws vary state to state. In some states, in order to convict defendant of kidnapping, it is essential that the defendant forcibly, secretly, or by threat confined, abducted, or imprisoned another person against her/his will and without any lawful authority, either with intent to commit or facilitate commission of any felony or with intent to inflict bodily harm upon or to terrorize the victim or another person. Some state kidnapping statutes do not require use of force for the commission of the crime of abduction. In some jurisdictions, in order to establish the offence of kidnapping, the prosecution must prove beyond a reasonable doubt that the defendant confined the victim by force. In some other jurisdictions, the focus in determining whether kidnapping has occurred is on the act of restraint "without consent."
   
   Kidnapping is punishable by imprisonment for three, five, or eight years. If the person kidnapped is under 14 years of age, the kidnapping is punishable by imprisonment in the state prison for 5, 8, or 11 years. If a person kidnaps or carries away another person with intent to hold or detain, that person for ransom, reward or to commit extortion or to exact from another person any money or valuable thing, is guilty of a felony, and upon conviction thereof, shall be punished by imprisonment in the state prison for life.
    

3. Kidnapping And Abduction In United Arab Emirates

   In UAE, kidnapping is an offence which involves an instance of kidnapping accompanying with a ransom for monetary profits. However, to constitute the offence of abduction, this is not necessary, and can cover an act wherein a person has been taken away from his or her original location by persuading him or her, by some act of fraud or with a forceful way that may or may not include violence[5].
   
   The Federal Decree Law No 31 of 2021 2021 Promulgating Penal Code (Law of Crimes and Penalties), also known as the 'UAE Penal Code' governs the law on crimes and specifies the penalties in the UAE.
   
   Article 344, under chapter two, titled VIOLATION OF FREEDOM, of UAE Penal Code specifies that a person who kidnaps, arrests or detains another person, or deprives any person of his freedom by any means, either by himself or through an intermediary, in violation of the law[6], shall be liable under this section. Section 344 also states the punishment of life imprisonment in the following cases:
   
   • Where act is committed by impersonating a public capacity or pretending to perform or to provide a public service or by making a communication by false identity.
   • Where the victim is a female: a minor, an insane, an imbecile- or a disabled person.
   • Where the act is committed by way of deception or with the use of force or threat to life or to inflict serious harm or with physical or mental torture.
   • Where the act is committed by two or more than two persons or by a person carrying a weapon.
   • Where the period of the kidnapping, arrest: detention: or deprivation of freedom exceeds more than one month.
   • Where the purpose of the act is to achieve some gam, or for revenge, or to commit rape upon the victim: or commit any sexual assault, or to inflict harm to him, or to induce him to commit a crime.
   • Where the act is committed against a public official in the course of or by reason of his duty.
   • Death penalty shall be imposed if the act results in the death of the victim.
   Also, the person who acts as an intermediary in the commission of this crime, or if any person knowingly hides a kidnapped person, shall be liable for punishment same as that of the original perpetrator.
   
   The abduction is defined under Federal Law No. 3 of 1987 (UAE Penal Code) as taking a person away by means of persuasion, fraud or force[7]. Article 327, under Chapter six, titled CRIMES AGAINST THE FAMILY, of 'UAE Penal Code' lays down that if any person, abducts a newborn child from his lawful guardian, conceals him, substitutes him with another or falsely attributes him to other than his parents, shall be sentenced to life imprisonment. Also, in Article 329, either of the two parents or grandparents shall be sentenced to detention and fine if he/she abducts his minor child or grandchild, by himself or through others, from his guardian or person entitled to take care of him, even without deceit or coercion.
    

4. Kidnapping And Abduction In Canada

   In Canada, the Criminal Code, 1985 (also known as C-46) lays down the punishments and definitions of criminal offences. Kidnapping is defined in Section 279 (1) and abduction is defined under various section of the code (sections 280, 281, 282 and 283) under chapter titled, 'KIDNAPPING, TRAFFICKING IN PERSONS, HOSTAGE TAKING AND ABDUCTION'.
   
   The offence of Kidnapping is constituted when a person kidnaps someone with the intention to:
   
   • to cause the person to be confined or imprisoned against the person's will[8];
   • to cause the person to be unlawfully sent or transported out of Canada against the person's will[9]; or
   • to hold the person for ransom or to service against the person's will[10].
   If the person in commission of the offence, uses a restricted or prohibited firearm, or if the offence is committed for the benefit of, at the direction of, or in association with a criminal organisation, that person shall be sentenced to imprisonment for life and to a minimum punishment of imprisonment for a term of:
   
   • 5 years, in case of first offence, and
   • 7 years, in case of second or subsequent offence.
   The offence of Abduction under Criminal Code, 1985 of Canada is an age-restricted offence. Abduction cannot be committed of a person of age above sixteen years.
   
   Under Section 280 (1) of the code, if a person, without legal authority, takes or causes to be taken, a person of less than 16 years of age out of the possession of and against the will of the parent and guardian of that person, or of any other person who at that time is having the lawful care or charge of that person, is guilty of abduction. The person shall be sentenced to imprisonment for a term of not more than five years.
   
   Under Section 281 of the code, if a person, who is not the parent or guardian or does not have the lawful charge or care of the person under the age of 14 years, unlawfully takes, entices away, conceals, detains, receives or harbours that person with the intention of depriving a parent or guardian or the person having lawful charge and care of that person, of the possession of that person, is guilty of abduction. The person committing the offence is guilty of an indictable offence and is liable to punishment for a term of not more than 10 years or an offence punishable on summary conviction.[11]
   
   Under Section 282 (1) of the code, a parent or guardian or person having lawful care or charge of a child under the age of 14 years, takes, entices away, conceals, detains, receives or harbours that child, in contravention of a custody order given by a court, with the intent to deprive a parent or guardian or person having lawful care or charge of a child, of the possession of that child is guilty of Abduction in Contravention of Custody or Parenting Order.
   
   And, if there is no such order passed by any court, the person committing such offence in order to deprive, a parent or guardian or person having lawful care or charge of a child, of the possession of that child, then he/she shall be liable under section 283 (1) of the code. The punishment for offence constituting under the above two sections is imprisonment not exceeding more than ten years or an offence punishable on summary conviction.[12]

Analysis

• United Kingdom:
  In United Kingdom, unlike India there is not major difference where will the offence of kidnapping or abduction will be constituted. They are used interchangeably. However, if the offence of Kidnapping and Abduction is committed against a child, it will be dealt under Child Abduction Act 1984.

• United States:
  In the United States, the requirements to constitute the offence of Kidnapping and Abduction varies from state to state. Unlike India, Kidnapping can also be done of a major person. There is no age barrier specified. However, laws vary state to state. In some states, in order to convict defendant of kidnapping, it is essential that the defendant forcibly, secretly, or by threat confined, abducted, or imprisoned another person against her/his will and without any lawful authority, either with intent to commit or facilitate commission of any felony or with intent to inflict bodily harm upon or to terrorize the victim or another person. Some state kidnapping statutes do not require use of force for the commission of the crime of abduction. In some jurisdictions, in order to establish the offence of kidnapping, the prosecution must prove beyond a reasonable doubt that the defendant confined the victim by force. In some other jurisdictions, the focus in determining whether kidnapping has occurred is on the act of restraint "without consent."

• UAE:
  Under the statutes and legal provisions of UAE, the word 'Abduction' is specifically refers to crimes committed against new born children or those minor child who are under the custody of either of the parents/grandparents, whereas the term 'kidnapping' has been used in general and can be committed with anyone, without any age restriction.

• Canada:
  In Canada also, the word Kidnapping is generally used and can be done of anyone without any age restriction. Whereas abduction is an age specific offence and can be done only of persons up to 16 years of age.

Conclusion and Suggestion
Kidnapping and abduction are dangerous acts which affect the freedom of a person. In India, section 359 to 369 go a long way in securing the liberty of people. In United Kingdom, House of Lords and Common Law, give protection to children and persons against kidnapping and abduction. In United States, Federal Laws and State Laws are in force to curb the offences of kidnapping and abduction. In United Arab Emirates, The UAE penal code lays down strict punishments for such offences. In Canada, the Criminal Code defines the crime and punishment. Moreover, they reinforce the rights of guardians to have control over the children who are easily moved and convinced by the words of conspiring adults.

There is a dire need to prevent these horrendous crimes and stop the culture of kidnapping and abduction from spreading, especially when it is done for marriages, forced sexual intercourses and forced begar etc. These children require safe release, medical, psychological and legal assistance as such acts take away the good days of childhood away from them as they are subjected to mental and physical torture.

To overcome these offences, not only do the states need to work together but also a co-task among nations need to be cultivated. Moreover, it is needed to be understood that a criminal would go around the laws, and indulge in these acts. What is required to prevent these offences is hand in hand working of non-governmental organisations and government bodies, and more sensitisation.

References:

1. Indian Penal Code, 1860
2. R v D (1984) AC 778, CA
3. ibid
4. 18 U.S. Code § 1201, United States, available at: https://www.law.cornell.edu/uscode/text/18/1201 (last visited on December 07, 2022)
5. Child Abduction In The UAE And Its Consequence, United Arab Emirates, available at: https://www.legal500.com/developments/thought-leadership/learn-more-child-abduction-in-the-uae-and-its-consequences/ (last visited on December 07, 2022)
6. The United Arab Emirates Penal Code, s. 344
7. The United Arab Emirates Penal Code, Federal Law No. 3 of 1987
8. Criminal Code (Canada), 1985, s. 279
9. ibid
10. ibid
11. Criminal Code (Canada), 1985, s. 281
12. Criminal Code (Canada), 1985, s. 283 (1)

Other Sources:

Websites:

• https://kidnapping.uslegal.com/kidnapping-v-abduction/
• https://www.legalpedia.co.in/legalnotes/kidnapping-abduction.html
• https://www.stimmel-law.com/en/articles/abduction-kidnapping-and-false-imprisonment-definitions-and-remedies-including-domestic
• https://www.law.cornell.edu/uscode/text/18/1201
• https://www.govinfo.gov/app/details/USCODE-2011-title18/USCODE-2011-title18-partI-chap55-sec1201
• https://www.criminaldefenselawyer.com/crime-penalties/federal/Kidnapping.htm
• https://twitter.com/UAE_PP/status/1504027865905573888?
• https://www.linkedin.com/pulse/explained-lifetime-imprisonment-other-punishments-freedom-elhaies/
• https://www.alrowaad.ae/legal-blog/what-are-the-penalties-for-kidnapping-in-uae/
• https://www.alrowaad.ae/legal-blog/explained-lifetime-imprisonment-and-other-punishments-for-freedom-violation-in-the-uae/
• https://www.wam.ae/en/details/1395303030401
• https://www.legal500.com/developments/thought-leadership/learn-more-child-abduction-in-the-uae-and-its-consequences/
• https://gulfnews.com/uae/crime/life-imprisonment-for-kidnapping-in-uae-1.86493253

Acts and Statutes:

• Criminal Code (Canada), 1985
• The United Arab Emirates Penal Code
• U.S. Code § 1201
• Indian Penal Code, 1986