Q.DEFINE DISTINGUISH BETWEEN THE OFFENCE OF KIDNAPPING AND ABDUCTION.
1.INTRODUCTION.
The word kidnapping is composed of two components, kid (child) and Nap (To steal or remove to abduct) remove or take away without permission. Thus kidnapping is the stealing away child without the permission of a person under whose custody or care the child is. There are two kinds of kidnapping. Kidnapping from Pakistan and kidnapping from lawful guardian. While abduction is compelling any person by force or by deceitful means inducing him to go from any place to another. It is an auxiliary act not punishable by itself, but made criminal only when it is done with one or other of the specified intent. The object of the Sections is to protect the rights of the parents and guardian with regard to the custody of minors on the one hand and the children of tender age from being abducted or induced on the other.
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 if kidnapping is child stealing.”
4. DEFINITION OF KIDNAPPING.
“Kidnapping means carrying a person, without his consent, by means of force, threats or fraud.”
5.KINDS OF KIDNAPPING UNDER SECTION 359.
There are two kinds of kidnapping under 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 offence may be committed in respect of minors as well as grown up person, but the kidnapping must be without the consent of the person kidnapped.
(II).Scope.
Offence with regard to 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.
Whoever takes or entices any minor less than fourteen years of age, if a male, or less than sixteen years of age, if a female or any person of unsound mind without the consent of such guardian is said to kidnap such minor or person 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 from improper purpose, and for the protection of the rights of parents and guardian having the lawful charge or custody of minors or insane person.
(IIII). INGREDIENTS OF KIDNAPPING FROM LAWFUL GUARDIANSHIP.
(i).The person kidnapped was a minor under 14 years in case of being a male.
(ii). The person kidnapped was a minor under 16 years 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.
The word taking means to cause to go, to escort or to get into possession. Taking under this section does not mean mere physical taking of minor from guardianship but also includes constructive taking from constructive possession of guardian.
The constructive taking such as meeting at as appointed place outside constitute constructive taking from the constructive possession of guardian.
(b).Enticing.
The word entice involves an idea of inducement by exciting hope or desire in the other. The express enticing involves that while the person kidnapped might have left the keeping of the lawful guardian willingly, still he state of mind that brought about that willingness must have been induced about in some way by the accused.
(ii). Minor Or Unsound Mind.
The person against whom offence of kidnapping have been committed must be a minor or a person of unsound mind.
As such an offence can be committed only when the person kidnapped is under 14 if a male and under 16, if a female.
(iii).Out of The Keeping of Lawful Guardianship.
In order that a offence 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 minor 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.
The taking or enticing of the minor out of the keeping of the lawful guardian must be without his consent. The consent of a minor is immaterial consent given by the guardian after the commission of offence would be of no avail. If a man by false and fraudulent representation induces the parents of a girl to allow him to take her away, such taking will amount of kidnapping.
(a). Illustration.
"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.
(b). Exception.
This section 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 the lawful custody of such child, unless such act is committed for an immoral of unlawful purpose.
9.PROOF OF KIDNAPPING.
(I).Kidnapping From Pakistan
In case of kidnapping from Pakistan, following need 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 from lawful guardianship shall be punished with imprisonment of either description for a term which may extend to 7 years and shall also be liable to fine.
(i). Fine.
It is not essential to impose a sentence of fine along with a sentence of imprisonment. But sentence of fine alone is illegal.
(ii). Appeal.
Where conviction was contrary to law, an appeal filed 2 years after the conviction was entertained and 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 offence 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. As the offence of abduction is not complete unless there is forceful compulsion or inducement by deceitful means.
(ii). To Go From Any Place.
Such 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 offence of abduction is a continuing offence, and a girl is being abducted not only when sale 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 is able to 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 IN ORDER TO MURDER UNDER SECTION 364.
Whoever kidnaps or abducts any person in order 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 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 QRONGFULLY TO CONFINE PERSON UNDER SECTION 365.
If a person kidnaps or abducts any person with intention of imposing secret and wrongful confinement, he will be punished for a term up to 7 years plus fine.
15. KIDNAPPING OR ABDUCTING FOR EXTORTING PROPERTY, VALUABLE SECURITY UNDER SECTION 365-A.
Whoever kidnaps or abducts any person for the purpose of extorting from the person kidnapped or abducted, or from any person interested in the person kidnapped or abducted, any property, whether movable or immovable, or valuable security, or to compel any person to comply with any other demand, whether in cash or otherwise, for obtaining release of the person kidnapped or abducted, shall be punished with death or imprisonment for life and shall also be liable to forfeiture of property.
16. KIDNAPPING, ABDUCTING OR INDUCTING WOMAN TO COMPEL FOR MARRIAGE ETC.
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, shall be punished with imprisonment for life, and shall also be liable to fine; and whoever by means of criminal intimidation s 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.
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 necessary.
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 deceitful means are
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 offence. A person is being
The offence is complete 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
is taken must be outside the important.
limits of Pakistan.
(viii). Nature of Offence.
It is a substantive offence. No punishable by itself
unless accompanied
with some criminal
intent.
(ix).Kinds.
There are two kinds of There is only one kind
kidnapping one is kidnapping of abduction.
from guardianship and second
is kidnapping from Pakistan.
18.CONCLUSION.
The pith and marrow of all the previous discussion shows that there is no iota untruth in say that kidnapping is committed only in respect of a minor under 14 years of age if a male and under 16 years of age if a female or unsound mind. Abduction is committed in respect of any person of any age. Kidnapping is a substantive offence. While abduction is an auxiliary act not punishable by it unless accompanied with some criminal act.
0 comments:
Post a Comment