Law and You > Criminal Laws > Bharatiya Nyaya Sanhita, 2023 > Kidnapping under BNS (S. 137)
The offence of kidnapping and abduction occupies a significant place in criminal law, as it directly impacts an individual’s personal liberty—one of the most fundamental rights recognized by the legal system. With the replacement of the Indian Penal Code, 1860 by the Bharatiya Nyaya Sanhita, 2023, the legal framework governing such offences has been modernized while retaining the core principles aimed at protecting individuals, especially women and children, from unlawful removal or coercion.
Under the Bharatiya Nyaya Sanhita (BNS), kidnapping and abduction are treated as distinct yet related offences. The law clearly differentiates between the unlawful taking of a minor or a person of unsound mind from lawful guardianship (kidnapping) and the use of force, deceit, or compulsion to move any person from one place to another (abduction). This distinction is crucial because it determines the ingredients of the offence, the burden of proof, and the nature of punishment.
The BNS strengthens protections against crimes involving trafficking, forced marriage, sexual exploitation, ransom demands, and other aggravated forms of unlawful confinement. By clearly defining the scope of consent, guardianship, and intention, the statute seeks to address contemporary forms of exploitation while ensuring that individual freedoms are not arbitrarily curtailed.
Kidnapping:
Kidnapping refers to the act of unlawfully seizing and detaining an individual against their will, often with the intent to demand a ransom or exert control over the victim for various reasons. It typically involves the use of force, threat, or deception to capture the victim. Kidnapping is a criminal offence in most jurisdictions and is universally condemned due to its grave impact on the victim’s physical and psychological well-being.
Kidnapping is defined as taking or enticing away a person against their will. The act can be done with the intention of demanding a ransom or for any other unlawful purpose. The term “taking away” means that the person is moved from one place to another without their consent, while “enticing away” means that the person is induced to move from one place to another by deceitful means.
Types of Kidnapping under BNS:
Section 137 BNS:
Kidnapping:
(1) Kidnapping is of two kinds: kidnapping from India, and kidnapping from lawful guardianship—
(a) whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from India;
(b) whoever takes or entices any child or any person of unsound mind, out of the keeping of the lawful guardian of such child or person of unsound mind, without the consent of such guardian, is said to kidnap such child or person from lawful guardianship.
Explanation:
The words “lawful guardian” in this clause include any person lawfully entrusted with the care or custody of such child or other person.
Exception:
This clause 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 or unlawful purpose.
(2) Whoever kidnaps any person from India 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.
Section 137(1) BNS defines the offence of Kidnapping, which is classified into two main types: kidnapping from India and kidnapping from lawful guardianship.
Kidnapping from India:
Section 137(1)(a) BNS explains about the kidnapping from India which means when a person takes another person away from his hometown i.e. takes him/her to another place beyond the territorial limits of India is known as Kidnapping from India.For example, ‘A’ is a woman living in New Delhi. ‘B takes ‘A’ to Bangladesh without her consent. ‘B’ committed the offence of kidnapping ‘A’ from India.
The word ‘convey‘ literally means simply going together on a journey but here it means carrying a person to his destination. Thus the offence would not be complete until the person actually reaches not only a foreign territory but to his destination as well.
Ingredients of Section 137(1)(a):
- The victim is conveyed beyond the limits of India;
- The victim is conveyed to a foreign territory and reached destination;
- There is no consent of the victim or that of any legally authorized person (on behalf of the person).
Note that the offence is not restricted to persons of unsound minds or minors but can be perpetrated against any male or female, major or minor, irrespective of their age and nationality. Similarly, a consent, loses its essential elements if it is given under fear or duress, in which case it is submission and not consent.
Kidnapping from Lawful Guardianship:
Section 137(1)(b) BNS intends to protect the interests of minors and at the same time, shields the custody rights of their lawful guardians. Section 137(1)(b) BNS penalises kidnapping of minors or of persons of unsound mind. There is no age barrier for persons of unsound mind under the section.
Ingredients of Section 137(1)(b) BNS
- There is taking or enticing of a child or a person of unsound mind by a person
- The victim must be taken or enticed out of the keeping of lawful guardian
- The guardian’s consent is absent.
A consent, loses its essential elements if it is given under fear or duress, in which case it is submission and not consent. If a minor is not in the custody of a lawful guardian, the section is not attracted.
Punishment for Kidnapping:
According to Section 137(2) BNS, whoever kidnaps any person from India 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. Offence under this Section is cognizable, bailable, non-compoundable and triable by Magistrate of First Class.
In Chadrakala Menon v. Vipin Menon, AIRONLINE 1993 SC 535 case, the appellant was married to the respondent. They both were settled in the United States and were well employed. They had a child who was sent to India to live with her maternal grandparents. Unfortunately, differences arose between the appellant and the respondent and they decided to get separated. While respondent filed an application for his daughter’s custody, the child continued to live with her maternal grandparents. One day, while the custody application was still to be decided upon, respondent took his daughter away with him to a different state. The grandparents lodged a complaint of kidnapping against him. However, the court held that respondent was the natural guardian of the child
Judicial Analysis of Kidnapping:
In Thakorlal D. Vadgama v. State of Gujarat, AIR 1973 SC 2313 case, the Court opined that ‘taking’ varies from ‘enticing’ in a very significant way. While the element of force may not be present in either taking or enticing, the element of ‘temptation’ is present in the latter although it is absent in the former.
In Biswanath Mallick v. State Of Orissa, 1995 CRILJ 1416 case, the Orissa High Court said the essential ingredients of the Section 361 are four in number, i.e.,
(i) taking or enticing away a minor or a person of unsound mind;
(ii) such minor must be under sixteen years of age, if a male, or under eighteen years of age if a female;
(iii)the taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind; and
(iv) such taking or enticing must be without the consent of such guardian.
If the girl is less than 18 years of age, it is immaterial whether the girl consents or not. The taking need not be by force, actual or constructive. The Court further held that the taking need not be by force, actual or constructive. There must be a taking of the child out of the possession of the guardian. The Explanation to Section provides that the words ‘lawful guardian’ in the said section include any person lawfully entrusted with the care or custody of such minor or other person.
In State Of Haryana v. Raja Ram, AIR 1973 SC 819 case the court held that the object of S. 361, I.P.C., is to protect minor children from being seduced for improper purposes and to protect the rights and privileges of guardians having lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in the section, out of the keeping of the lawful guardian without the consent of such guardian. The use of the word ‘keeping’ connotes the idea of charge, protection, maintenance and control; further, the guardian’s charge and control are compatible with the independence of action and movement in the minor, the guardian’s protection and control of the minor being available, whenever necessity arises. The consent of the minor who is taken or enticed is wholly immaterial; it is only the guardian’s consent that would take a case out of the purview of the section. It is not necessary that the taking or enticing must be- shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section.
In r v. Prince, L.R. 2 Cr. Cas. Res. 154 (1875) case, where the defendant was convicted for taking a 14-year-old unmarried girl out of the possession and without the consent of her parents. At trial, the jury found that although the girl was 14 at the time, she had told Defendant and he had reasonably believed that she was 18. The statute he was convicted under was silent as to the mental state required to make the act a crime. Defendant appeals. The issue was whether the court is required read a mens rea requirement into a statute that is silent with regard to the mental state required to make the act a crime? The Court held that a mistake of fact does not stand as a defence to a crime where the statute making the act a crime contains no requirement of knowledge of that fact to begin with. In this case the forbidden act was wrong in itself and the legislature has enacted that if anyone does this act, he does so at his own risk. Thus, this case introduces the mistake of fact defense in the context of a criminal act for which the statutory language making the act a crime has no requirement of mens rea.
Distinguishing Between Kidnapping and Abduction:
| Kidnapping | Abduction |
| Kidnapping is defined under Section 137 of the Bharatiya Nyaya Sanhita, 2023. | Abduction is defined under Section 138 of the Bharatiya Nyaya Sanhita, 2023. |
| The offence of kidnapping is committed against a child or a person of unsound mind. | There is no provision for age in the case of abduction, any person can compel any other person by force and deceitful means to move from one place to another. |
| In the case of kidnapping, the person kidnapped is removed from his/her lawful guardianship. | In order to determine the offence of abduction, lawful guardianship is immaterial. |
| A person is simply taken away therefore means used to kidnap is not appropriate. | Force, fraud, or deceit are the means employed in abduction. |
| The consent of the lawful guardianship matters whereas the consent of the person kidnapped is not necessary. | The consent of a person plays an important role in abduction. Abduction is said not to be committed if there is a presence of free and voluntary consent of the abducted person. |
| The intention of a person to commit the offence, of kidnapping, is immaterial. | The intention is not immaterial in the case of abduction, which means a person is liable to have committed abduction only if there is ill intention behind the same. |
| Kidnapping is a more serious offence. | Abduction is less severe as compared to kidnapping. |
| Not a continuing offence. As soon as the person or minor is separated from his/her lawful guardianship, the offence is completed. | A continuing offence as the place of the abducted person changes from one place to the other. |
| Punishment for kidnapping is mentioned under Section 137(2) which is imprisonment extending to 7 years and a fine. | It is not punishable unless done with the intention to commit an offence mentioned under Sections 87, 97, and 140 to 142 of the BNS. |
Difference between Kidnapping and Hostage:
| Kidnapping | Hostage |
| Kidnapping is the act of unlawfully abducting or capturing a person against their will. | A hostage refers to a person who is seized or detained by a group or individual, often as a means of leverage or coercion to achieve certain demands. |
| Kidnapping may not necessarily have a specific demand and could be driven by various motives, including ransom, harm, or control. | hostage situations often involve a demand or negotiation |
| Punishment for kidnapping is mentioned under Section 137(2) of the BNS which is imprisonment extending to 7 years and a fine. | Hostage is a punishable offence under Section 142 of the BNS that deals with ‘Wrongfully concealing or keeping in confinement, kidnapped or abducted person’. |
Conclusion:
Kidnapping under the Bharatiya Nyaya Sanhita, 2023 represents a serious violation of personal liberty and security, striking at the very foundation of individual freedom protected by law. By clearly defining kidnapping from lawful guardianship and distinguishing it from abduction, the BNS provides conceptual clarity while ensuring that vulnerable groups—particularly minors and persons of unsound mind—receive heightened legal protection.
The framework under the BNS reflects a progressive and victim-centric approach. It not only penalizes the unlawful removal or enticement of individuals but also addresses aggravated forms of the offence, including kidnapping for ransom, forced marriage, trafficking, and sexual exploitation. The emphasis on intention, consent, and guardianship ensures that the law is applied with precision, balancing strict enforcement with principles of fairness and justice. Effective implementation, judicial sensitivity, and public awareness remain essential to achieving the true objective of the law—protecting individuals from coercion, exploitation, and unlawful deprivation of freedom.
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