ACKNOWLEDGMENTS

Primarily I would like to thank God almighty for being able to complete this project with
success. I extend my heartfelt appreciation to my esteemed Assistant Professor Dr. Lavalesh
Singh for his guidance and suggestions in completing this project. The completion of this
project was possible under his guidance and support. I would also like to acknowledge my
sincere gratitude to principal Mr. Anand Shankar Singh and convener Dr. Manoj Kumar
Dubey for providing me with all the facilities that were required to complete my assignment.
At last but not the least, I am very thankful to my parents and my friends who have boosted
me up morally with their continuous support.

1
 CASE LAWS LIST

S. No. Case Laws Citation

1. R v. Prince LR 2 CCR 154.

2. Varadarajan v. State of Madras AIR 1965 SC 942.

3. Somgir Mangalpuri Karibharthi v. State of 1966 Guj, LR 378.

Gujarat

4. T.D Vadgama v. State of Gujarat AIR 1973 SC 2313.

5. Biswanath Mallick v. State of Orissa (1995) Cr LJ 1416.

6. Nemai Chattoraj v. Queen Emperor (1900)ILR 27CAL1041.

7. Rekha Rai v. Emperor (1927)ILR 6 PAT 471.

8. Smt Suman and Others v. State of Uttar Pradesh 2024 AHC 141741.

9. State of Haryana v Raja Ram AIR 1973 SC 819.

10. Jagannadha Rao v. Kamaraju (1900) 24 Mad. 284.

11. Bidyadhar Naik v. State of Orissa 1990 Cr Lj 1579 (Orissa).

12. State v Harban Singh Kishan Singh AIR 1954 Bom 339.

13. Prakash v. State of Haryana AIR 2004 SC 227.

14. Pradeep Kumar v. State of Bihar and Anr AIR 2007 SC 3059.

15. Ashok Kumar Seth v. State of Orissa 2003 Cr Lj 642 (Ori.).

16. State v. Ramji Vitthal Chaudhari AIR 1958 BOM 381.

17. Vishwanath v. State of Uttar Pradesh AIR 1960 SC 67.

18. Chundu Murmu v. State of West Bengal AIR 2012 SC 2160.

19. Vinod Chaturvedi v. State of MP AIR 1984 SC 911.

2
 INDEX

S. No. Table of Contents Page No.

1. Introduction

2. Kidnapping

3. Kidnapping from India

4. Kidnapping from lawful guardianship

5. Abduction

6. Distinction between Kidnapping and Abduction

7. Aggravated form of kidnapping and Abduction

8. Conclusion

9. Bibliography

3
 INTRODUCTION

The concepts of kidnapping and abduction have long been considered serious offenses under
Indian criminal law due to the inherent threat they pose to an individual's personal liberty and
security. With the introduction of the Bharatiya Nyaya Sanhita (BNS) 2023, India's criminal
justice system has undergone significant reforms, replacing the colonial-era Indian Penal
Code (IPC) of 1860. This shift represents a paradigm change aimed at modernizing the legal
framework and aligning it with contemporary societal needs.
Kidnapping and abduction are both crimes that involve the unlawful taking or movement of a
person, but they differ in legal elements and context. Traditionally, under the IPC, kidnapping
was classified into two categories: kidnapping from India and kidnapping from lawful
guardianship. Abduction, on the other hand, involved the use of force or deceit to compel a
person to move from one place to another. These definitions have been retained with minor
modifications in the BNS 2023, while also incorporating certain legal nuances and updated
punishments to reflect changing societal dynamics and to deter potential offenders more
effectively.
The BNS categorizes these offenses under Chapter VI, which deals with offenses affecting
the human body. Kidnapping, as defined in Sections 137 1 of the BNS, is of two kinds:
kidnapping from India and kidnapping from lawful guardianship. The kidnapping from India
involves taking a person beyond the boundaries of India without their consent or that of
someone legally authorized to give it. The kidnapping from lawful guardianship concern is
the taking or enticing of a minor (under 16 years for boys and under 18 years for girls) or a
person of unsound mind from the lawful custody of their guardian without permission.
Abduction, on the other hand, is defined under Section 138 BNS as compelling or deceitfully
inducing a person to move from one place to another. Unlike kidnapping, abduction can
happen to any person regardless of age and mental condition and always involves either force
or deceit. The element of intent plays a crucial role in determining the severity and nature of
punishment in both offenses. For instance, if kidnapping or abduction is committed for
purposes like murder, ransom, human trafficking, or forced marriage, the punishment is
significantly enhanced.

1 The Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023), s. 137.

4
 KIDNAPPING

MEANING :- The word 'kidnapping' has been derived from the word 'kid' which means
'child' and 'napping' which means 'to steal'. Thus kidnapping literally means ‘child stealing.’ 2
Kidnapping means taking away a person against his or her will by force, threat or deceit.
Usually, the purpose of kidnapping is to get a ransom, or for some political or other purposes
etc. Previously Kidnapping is dealt under Section 359 to 361 of chapter XVI of Indian Penal
Code, 1860. But BNS replaces IPC and under Section 137 of BNS is dealt with kidnapping.
As per Section 137 of Bharatiya Nyaya Sanhita, 2023, Kidnapping is of two types:
1. Kidnapping from India
2. Kidnapping from lawful guardianship.

OBJECT :- The provisions of section 137 of BNS are intended more for protection of
minors and the person of unsound mind themselves than for the right of guardian of such
persons. It may be that the mischief intended to be punished may partly consist, in the
violation or the infringement of guardian’s right to keep their ward under their care and
custody but more important is to afford security and protection to the wards themselves
against seduction or abduction for the improper purpose.3

MENS REA :- Kidnapping is an offence which is based on principle of strict liability in

which mental element is not taken into consideration therefore, absence of mens rea also
make a person liable for the offence of kidnapping. The burden of proof lies on the accused
that he has to prove that he has no knowledge and no malicious intent to commit the offence
of kidnapping.
In the case of R v. Prince,4 Henry Prince was charged under Section 55 of the Offences
against the Person Act, 1861 for taking Annie Phillips, a fourteen year old girl. The section
penalised unlawful taking of an unmarried girl below sixteen years of age out of the
possession of her lawful guardians including her father and mother. The most interesting
facet of this case is that the girl looked much older than sixteen and stated to Prince that she
was eighteen years old. Under the mistaken belief that Annie was eighteen years old, Prince
had ‘taken’ her out of her father’s custody. The jury also found that Prince had acted under a

2 Prof. S.N. Mishra, Indian Penal Code 700 (Central Law Publications, Prayagraj, 22nd edn., 2021).
3 Prof. S.N. Mishra, Indian Penal Code 700 (Central Law Publications, Prayagraj, 22nd edn., 2021).
4 LR 2 CCR 154.
5
reasonable belief and that the girl did look a lot older than 16. However, Prince was convicted
of the offence on the ground that his intention did not really matter in an offence which did
not require the mens rea element to be proved as per the statute.

KIDNAPPING FROM INDIA

Section 137 clause (a) of BNS states that “Whoever conveys any person beyond the limits of
India without the consent of that person, or of some person legally authorized to consent on
behalf of that person, is said to kidnap that person from India.” 5 Under IPC Kidnapping from
India is defined under Section 360.
Examples:- ‘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.
For the offence of Kidnapping from India, the victim may be a male or a female, whether
major or a minor. This offence consists of the following ingredients :-
1. Conveying of any person beyond the limits of India.
2. Such conveying must be without the consent of that person.
3. Consent must be free and not vitiated for not falling under the offence of
kidnapping. Consent defined under Section 28 of BNS which provides the negative
definition of consent.
The words used in the section are 'beyond the limits of India'. This means that the offence
under this section is complete, the moment a person is taken outside the geographical
territory of India. It is not necessary that the persons should reach their destination in some
other foreign territory. By the same token, if a person is apprehended before he crosses the
Indian border, then the offence will not be complete. At best, it may amount to an attempt to
commit the offence of kidnapping from India under Section 137 (a) BNS. Till then, he has a
locus paenitentia.6
The taking away of a person outside the territory of India is made a separate offence, because
it has the effect of removing a person from the jurisdiction of the Indian law enforcing
agencies.

5 The Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023), s. 137.

6 PSA Pillai, Criminal Law 538 (LexisNexis, New Delhi, 14th edn., 2019).
6
 KIDNAPPING FROM LAWFUL GUARDIANSHIP

Section 137 clause (b) of BNS states that “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
guardianship.” Previously Kidnapping from lawful guardianship is defined under Section 361
of IPC.
The section penalises kidnapping of minors or of persons of unsound mind: in case of males,
the offence is committed if a minor below eighteen years of age is ‘taken’ or ‘enticed’ and in
case of females, the offence is accomplished if the same act is committed against a minor
below eighteen years of age under BNS. Previously under IPC the in case of males, the
offence is committed if a minor below sixteen years of age is ‘taken’ or ‘enticed’ and in case
of females, the offence is accomplished if the same act is committed against a minor below
eighteen years of age. There is no age barrier for persons of unsound mind under the section.7
Examples - ‘A’ is a boy of 13 years of age, living under the lawful guardianship of his
mother, ‘Z’, ‘B’ convinces him to accompany him against the consent of his mother.
According to section 137(b) of BNS, ‘B’ has committed the offence of Kidnapping from
lawful guardianship.

The essential ingredients of the section are:

(i) taking or enticing away a minor or a person of unsound mind,
(ii) such a minor must be under the age of eighteen years, if a male, or under eighteen years,
if a female; (iii) the taking or enticing away must be out of the keeping of the lawful guardian
of such minor or person of unsound mind, and
(iv) such taking or enticing away must be without the consent of such guardian.

Taking and Enticing :- ‘Takes’ means “causes to go, to escort, to get in possession.” In
order to prove an offence under this section the prosecution must show that the accused took
some active part in the girls leaving her lawful guardian's custody and taking the shelter with
him. The taking need not be by force, actual or constructive, and it is immaterial whether the

7 Kidnapping and abduction in criminal law, available at: https://epgp.inflibnet.ac.in. (last visited on April 10,
2025).

7
girl consents or not. The taking of a child out of keeping the lawful guardianship is
necessary.8
'Taking' implies no active or constructive force. But there must be some active part played by
the accused for 'taking' the minor. Simply permitting or allowing a minor to accompany one
will not amount to an offence.
In the case of Varadarajan v. State of Madras,9 a minor girl, who had left the protection of
her father knowing and having capacity to know the full import of what she was doing
voluntarily joined the accused. The Supreme Court observed that there is a distinction
between taking and allowing a minor to have company of a person. In the present case the
accused was held not to have taken her away from the keeping of her lawful guardian.
Something more has to be shown, that is some kind of inducement held out by the accused
person or an active participation by him in the formation of intention of the minor to leave the
house of guardian is necessary.
The court held that where a minor girl leaves the protection of her father to join the accused,
knowing and completely understanding the consequences of her act, it cannot be said that the
accused has taken her away from the keeping of her legal guardian.
For the accused to be held guilty, it must be established that the accused induced the minor or
actively participated in developing such intention in her mind, either immediately prior or at
some prior stage of her leaving her father’s protection.
The accused cannot be held guilty simply because after leaving her guardian’s house
willingly, she joined the accused and the accused encouraged her not to return by taking her
to different places.
Somgir Mangalpuri Karibharthi v. State of Gujarat 10, In this case, several factors are held
which should be taken into consideration in deciding whether there has been ‘taking’ or not:-
1. The conduct of parties particularly of the accused at the time and before their going
away together.
2. The maturity of the girl and her intellectual capacity to think for herself and to make
up her own mind.
3. The circumstances under which and the object for which sea filled it necessary or
worthwhile to leave her guardian's protection.

8 Prof. S.N. Mishra, Indian Penal Code 701 (Central Law Publications, Prayagraj, 22nd edn., 2021).
9 AIR 1965 SC 942.
10 1966 Guj, LR 378.
8
‘Enticing’ is inducing a minor to go off on her own accord to the kidnapper. It involves an
idea of inducement by exciting hope or desires in the other. One does not inside another
unless the latter attempts to do a thing which the person kidnapped would not otherwise do.
‘Enticing' means that while the person kidnapped might have left the keeping of the lawful
guardian willingly, still the state of mind that brought about the willingness must have been
induced or brought about in some way by the accused. The word 'entice' connotes the idea of
inducement or persuasion by offer of pleasure or some other form of allurement. This may
work immediately or it may create continuous and gradual but imperceptible impressions
culminating after some time in achieving its ultimate purpose of successful inducement.
Inducing a minor girl by promise of marriage to leave the house of her guardian amounts to
enticement within the meaning of the section.11
In the case of, T.D Vadgama v. State of Gujarat12, The accused was charged under Section
137 of the BNS for kidnapping a minor girl, Mohini (below 15 years), from the lawful
guardianship of her father. It was proved that the accused had earlier solicited or induced
Mohini to leave her father's protection by conveying or encouraging the suggestion that he
would provide her shelter. The Supreme Court held that, The accused was held liable for
kidnapping because his prior inducement played a role in Mohini’s decision to leave her
guardian’s custody, even if his actions were not the direct trigger at the time of departure. The
words "take" and "entice" in Section 137 of BNS are interconnected, deriving meaning from
each other. If a minor leaves her guardian’s house completely uninfluenced by any promise,
offer, or inducement from the accused, the accused cannot be held guilty. However, if the
accused laid the foundation through inducement, allurement, or threat, and this influenced the
minor’s decision to leave, it constitutes kidnapping.
This case clarifies that passive encouragement or prior influence can satisfy the "enticement"
requirement under Section 137 of BNS.
In the case of, Biswanath Mallick v. State of Orissa13The accused, Biswanath Mallick,
kidnapped Kalyani (a minor girl) when she went out around midnight. He took her to
Cuttack, Bhubaneshwar, and finally Jeypore. Her father filed a police complaint, and she was
later rescued from a relative’s house of the accused. The trial court convicted the accused and
sentenced him to two years of rigorous imprisonment and a fine of Rs. 100. The defense

11 PSA Pillai, Criminal Law 539 (LexisNexis, New Delhi, 14th edn., 2019).
12 AIR 1973 SC 2313.
13 (1995) Cr LJ 1416.
9
argued that since Kalyani was 17 years, 8 months, and 7 days old, she had attained the "age
of discretion" (could understand consequences), and thus, no kidnapping occurred.
The court explained the key differences between "taking" and "enticing" under Section 137 of
BNS
"Taking":- Means causing the minor to go, escorting, or getting possession of them. The
minor’s consent or desire is irrelevant if they are taken against their will, it qualifies as
"taking."
“Enticing” :- Involves inducing the minor to willingly leave the guardian’s custody. The
accused creates hope or desire in the minor to go with them. Not limited to direct allurement
—any act that influences the minor’s decision qualifies. The minor must act based on the
accused’s inducement, doing something they would not have otherwise done.
Force or fraud is not necessary, kidnapping can occur even without physical coercion. For
“taking,” the minor’s willingness is irrelevant (they may or may not consent). For “enticing,”
the minor’s willingness is crucial but it must be induced by the accused.

When Taking is complete :- Kidnapping is complete the moment a minor is taken away
from their legal guardian (like a parent or husband). It doesn’t keep being a crime until the
child is returned—it’s a one-time act when the child is first taken.
Example: If Person A kidnaps a girl and gives her to Person C, who doesn’t know she was
kidnapped. A is guilty of kidnapping. C is not guilty because he didn’t take her from the
guardian; she was already kidnapped.
"Taking" is a one-time act - Once the child is out of the guardian’s custody, the kidnapping is
done.
Later moves don’t count as kidnapping – If someone else (like Person C) takes the child later,
it’s not kidnapping because the child was already taken away. Instead, it’s called
"detaining."14
Nemai Chattoraj v. Queen Emperor,15 In this case,
- A married minor girl was taken from her husband’s house to Person K’s house for 2 days.
- Then, Person B took her for 20 days.
- Finally, Person B secretly moved her to Person C’s house.
- Court’s Decision: Person C was not guilty of kidnapping because the girl was already taken
from her guardian before she reached him.

14 Kidnapping and abduction, available at: https://www.freelaw.in (last visited on April 10, 2025).
15 (1900)ILR 27CAL1041.
10
In Rekha Rai v. Emperor,16 B enticed a minor girl G, to come out of the terrace to the road
and then to the motor car in which K was sitting so that K may drive with her. It was held that
the offence of kidnapping was complete when he drove away with her.

Any person of unsound mind or a minor (Age of minors):- Under BNS the age of minors
is decided is that - female of less than 18 years and male of less than 18 years. But
previously under IPC the age is different ie. the age of a minor child at the relevant point in
time should be less than 16 in respect of a male, and less than 18 in respect of a female, in
order to constitute an offence under this section. It is for the prosecution to prove that the
minor at the time of kidnapping was below the age stipulated under the section.
Exception in Manipur: For girls, the age limit is15 years (not 18). So, taking a 16-year-old
girl in Manipur is not kidnapping under this law.
Age Matters More Than Appearances - If a girl is under 18, it’s kidnapping—even if The
kidnapper didn’t know her real age. She looked older. She had a "bad reputation" (this is not
a defense).
Example:- A man kidnaps a 17-year-old girl who looks 20. He’s still guilty; he "takes the
risk" if she’s underage.
Unsound Mind Must Be Permanent - If someone is temporarily unconscious (e.g., from
poison or alcohol), it doesn’t count as "unsound mind."
Example: A girl drugged with dhatura poison isn’t considered "of unsound mind," so
kidnapping charges might not apply17.
In the case of, Smt Suman and Others v. State of Uttar Pradesh, 18 Allahabad High Court
gave a peculiar judgment. It was held that if a minor girl, who is 17 years old and is mature
enough to understand the consequences and rationale behind her action, leaves the
guardianship of her parents to live with a boy who has in no way subjected her to any kind of
pressure, inducement, etc., it cannot result in an offence under section 361 of IPC and is not
punishable.

Out of the keeping of a lawful guardian :- "Keeping" means within the protection or care
of the guardian. A minor is said to be in the keeping of a person where he depends upon him
for his or her maintenance, support or sustenance. It is not necessary that the minor should be

16 (1927)ILR 6 PAT 471.

17 Kidnapping and abduction, available at: https://www.abhidhvajlawjournal.com (last visited on April 10,
2025).
18 2024 AHC 141741.
11
in the physical possession of the guardian. It would be sufficient if he is under continuous
control which is for the first time terminated by the act of the accused. If a minor boy goes
out into the street or on the playground by himself, or goes on a visit to the market or for a
fanfare either with or without the knowledge of the guardian, he is still said to be in the legal
custody of her parents. A minor is no longer in the keeping or control of the lawful guardian
if she was driven away from her parental roof or she voluntarily abandoned the control of the
guardian on account of ill-treatment. In a case X meets a girl aged 15 years in a park. She
tells him that her age is 19 years and that she is ill-treated in her house by her father and that
she would be happy to be taken away from home. Thereafter X takes the girl to his house and
allows her to remain there. In the case X will not be liable for kidnapping because there is no
inducement or active solicitation on the part of the accused which can be said to be the cause
of the girl coming out of her father's house, instead she has voluntarily abandoned the control
of the guardian on account of ill-treatment.
Two ways through which guardianship can be discontinued ie.
1. Abandonment of guardianship by the child voluntarily.
2. Leave guardianship by active role of accused (by inducement).
In the case of, State of Haryana v Raja Ram,19 The Supreme Court observed that the word
'Keeping', in the context, connotes the idea of charge, protection, maintenance and control. It
is not necessary that the minor should be under physical possession of the guardian. It
suffices for the purpose of the section if it is under a continuous control of the guardian.

Lawful guardian:- Under Section 137 of BNS ,

Explanations :- The words “lawful guardian” in this section include any person lawfully
entrusted with the care or custody of such minor or other person.
The term used in the BNS is 'lawful guardian' and not 'legal guardian'. The expression 'lawful
guardian' is a
much more wider and general term than the expression 'legal guardian'. 'Legal guardian'
would be parents or
guardians appointed by courts. 'Lawful guardian' would include within its meaning not only
legal guardians,
but also such persons like a teacher, relatives etc, who are lawfully entrusted with the care
and custody of a

19 AIR 1973 SC 819.

12
minor.20 A guardian may be lawful without being legal. Lawful is one to whom the care and
custody of a child is 'lawfully entrusted'. 'Lawfully entrusted' means that the care and custody
of a child has arisen in some lawful manner. The word 'lawful' does not mean that the person
who entrusts a minor to the care or custody of another must stand in the position of a person
having a legal duty or obligation to the minor.
Under this section the guardian must be lawful, he need not be a legal guardian. In the case
of Jagannadhan Rao v. Kamaraju21 When the father of a girl sends her to school with his
servant or a friend, the servant or such friend is the lawful guardian without prejudice to the
right of possession of the father of the child. The child is still said to be in the father's
possession or keeping even though the actual physical possession is temporarily with the
servant or the friend. Here father is the legal guardian and servant or the friend would be only
lawful guardians.
In Bidyadhar Naik v. State of Orissa22, A minor girl (Surekena) was being taken by her
future husband from her father's house to his house for marriage, as per their caste custom.
On the way, some men (appellants) forcibly took her and raped her. Court's Decision: The
future husband was temporarily her "lawful guardian" during the journey, as the father had
entrusted her to him. Even if the future husband wasn't considered a guardian, the girl was
still a minor under her father's lawful guardianship. Since she was taken forcibly (without the
guardian's consent), the appellants were guilty of kidnapping under Section 137 of BNS.

Without the consent of such guardian :- Under this section the consent of the minor or a
person of unsound mind is immaterial because they are in law incapable of assigning a valid
consent. Therefore, taking or enticing of the minor must be without the consent of the
guardian.
A believing in good faith the age of a girl to be over 18 years took her away from the
guardianship of her parents without their consent. It was later discovered that the girl was
below 18 years. Here A would be liable under Section 137 of BNS for the offence of
kidnapping from lawful guardianship because the girl was actually found to be below 18
years of age. His mistaken belief about the age of the girl would be no defence because
knowledge of the offender about the age of the girl that she is minor is not a necessary
ingredient of kidnapping under section 137 of BNS.23

20 State v Harban Singh Kishan Singh AIR 1954 Bom 339.

21 (1900) 24 Mad. 284.
22 1990 Cr Lj 1579 (Orissa).
23 Prof. S.N. Mishra, Indian Penal Code 706 (Central Law Publications, Prayagraj, 22nd edn., 2021).
13
In Prakash v. State of Haryana,24 The Supreme Court observed that under Sec 137 of BNS
the consent of the minor who is taken or enticed is wholly immaterial. It is only the
guardian's consent which takes the case out of its purview. Also, it is not necessary that
taking or enticing must be by force or fraud. Persuasion by accused creating willingness on
part of minors is sufficient to attract this section.
Pradeep Kumar v. State of Bihar and Anr 25, In this case, the Supreme Court held that the
consent obtained by lying to the father of the girl regarding the purpose of taking his minor
daughter away cannot be termed as consent under the purview of this section and such taking
away would amount to kidnapping.

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.26
There are certain exceptions to kidnapping from lawful guardianship. The clause does not
extend to the following persons:
● A person who in good faith believes himself to be the father of the illegitimate child.
● A person who in good faith believes himself to be entitled to the lawful custody of
such a child.
Such a person may be held liable for kidnapping from lawful guardianship if their act is
unlawful and for an immoral purpose.
In a case of State v. Ramji Vithal Chaudhari27 where a minor girl was in the custody of her
mother, under orders of the court when the mother had obtained divorce from her husband
and the father forcibly removed the daughter from a school, the father was held guilty of
kidnapping under this section.
In Ashok Kumar Seth v. State of Orissa,28 The accused husband was charged with forcibly
entering into the house of his father-in-law and taking away the minor child (his own child)
from the custody of his wife. The Court held that father being the natural guardian of a minor

24 AIR 2004 SC 227.

25 AIR 2007 SC 3059.
26 The Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023), s. 137.
27 AIR 1958 BOM 381.
28 2003 Cr Lj 642 (Ori.).
14
under Hindu law and since he was not specifically prohibited by a Court order not to have
custody of the child, no prima facie case against him was made out and therefore, cognizance.

HINDU LAW :- Under Hindu Law, the father is the natural guardian of his legitimate
children and has the right to their custody. The mother of an illegitimate child is its natural
guardian during early childhood. For legitimate children, the mother’s custody is considered
part of the father’s rights, so if she moves the child, it doesn’t count as taking the child away
from the father.29

MUSLIM LAW :- The mother is the lawful guardian of an illegitimate child. Under Sunni
law, the mother is the guardian of her daughter until she reaches puberty (assumed at 15
years). Under Shia law, if a father takes a child under 7 years old or an illegitimate child
from the mother’s custody, it is considered kidnapping. Even a divorced wife has custody
rights over her children. Order of Guardianship After Mother:-
1. Father
2. Other close relatives (within prohibited degrees of marriage).
Once a married girl reaches puberty, her husband becomes her guardian. 30

PUNISHMENT FOR KIDNAPPING:- Under Section 137 Sub section 2 of 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.31

29 Prof. S.N. Mishra, Indian Penal Code 706 (Central Law Publications, Prayagraj, 22nd edn., 2021).
30 Prof. S.N. Mishra, Indian Penal Code 707 (Central Law Publications, Prayagraj, 22nd edn., 2021).
31 The Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023), s. 137.
15
 ABDUCTION

Under Section 138 of BNS, “Whoever by force compels, or by any deceitful means induces
any person to go from any place, is said to abduct that person.”
The section defines the word ‘abduction’. Abduction under this section is not a substantive
offence but an auxiliary act which is not punishable by itself but made criminal only when it
is done with one or other of the intentions specified in the following sections. Mere offence
of Abduction is not punishable until and unless it is committed with an intention. Abduction
committed with some object or purpose, it is punishable.32
Illustration:- B slaps and hurts A and threatens: "If you don’t come with me, I will kill

you." A is forced to leave her house out of fear. Slapping + death threat → establishes

forceful compulsion. Taking A away from her house → fulfils the requirement of

abduction. B commits abduction under Section 138 of BNS.

Ingredients :-
The following are its essentials:
1. Forcible compulsion or inducement by deceitful means.
2. The object of such compulsion or inducement must be the going of a person from any
place.

By Force :- In case of abduction, a person is compelled either by use of force or is induced

by practising deceit to move from one place to another. Actual use of force is necessary, and
merely a show or threat of force is not sufficient. The term 'force', as embodied in s 138,
BNS, means the use of actual force and not merely show of force or threat of force. Where an
accused threatened the prosecutrix with a pistol to make her go with him, it would amount to
abduction under this section.33

Deceitful Means :- Under this section, inducing a person by deceitful means to go from any
place is also an offence. Deceitful means are used as an alternative to 'use of force'. Thus, a
person can use force to compel, or in the alternative, deceive a person to leave a place. Either
way, it amounts to abduction. Deceitful means misleading a person by making false

32 Prof. S.N. Mishra, Indian Penal Code 711 (Central Law Publications, Prayagraj, 22nd edn., 2021).
33 Prof. S.N. Mishra, Indian Penal Code 712 (Central Law Publications, Prayagraj, 22nd edn., 2021).
16
representations and thereby persuading the person to leave any place. In inducement, there is
some active suggestion on the part of the abductor which causes the person abducted to move
to some place, where he would not have gone but for the external pressure of some kind. 34

Going of a person from any place:- When force, fraud, or deceitful means are used so as to
compel or induce a man to move from one place to another the offence under this section is
constituted. So where a woman is carried away by a force against her own will, it would be
abduction even though she is carried with the object of restoring her to her husband.35
Vishwanath v. State of Uttar Pradesh36 It was held that mere abduction is no offence at all.
The guilty and wrongful intention must be present for the offence to be punishable.

Continuing Offence :- Abduction is a continuing offence, and a person is liable not only
when the victim is first moved from one place to another but also if they are subsequently
moved to other places. All those involved in such subsequent movements are also liable.
Chundu Murmu v. State of West Bengal,37
- Frequent quarrels occurred between the husband and wife, and the wife had left the
matrimonial home.
- The accused (husband) brought her back on the day she went missing.
- The wife’s dead body was later recovered based on the accused’s disclosure.
- Held:- Merely bringing back an estranged wife to the matrimonial home does not constitute
kidnapping or abduction.
In Vinod Chaturvedi v. State of Madhya Pradesh,38 the appellant was alleged to have
abducted the deceased Brindaban. During the course of investigation, it was found that
Brindaban, on being persuaded by the accused persons and in particular, went inside his
house, came out properly dressed to accompany the group to village Rampura. It was held
that Brindaban was abducted by the accused persons.

34 PSA Pillai, Criminal Law 540 (LexisNexis, New Delhi, 14th edn., 2019).
35 PSA Pillai, Criminal Law 540 (LexisNexis, New Delhi, 14th edn., 2019).
36 AIR 1960 SC 67.
37 AIR 2012 SC 2160.
38 AIR 1984 SC 911.
17
 DISTINCTION BETWEEN KIDNAPPING AND ABDUCTION

Basis Kidnapping Abduction

Provision of Section 136 of BNS states the two The definition of abduction is given
Law types of kidnapping. Clause (a) under Section 138 of BNS.
defines kidnapping from India,
Clause (b) defines kidnapping from
lawful guardianship.

Age of victim As per Section 137, the female Abduction may be in respect of a
kidnapped should be under 18 years person of any age.
of age and male kidnapped should be
under 18 years of age.

Means Taken away or enticed to go away In abduction Force, compulsion

with the kidnapper. The means used and deceitful means are used to
are irrelevant. take a person from a place.

Removal Here the lawful guardian refers to a In abduction, there is no concept of

from lawful person who is legally authorised to taking a person away from his or
guardianship take care of a minor or a person of her lawful guardian.
unsound mind for kidnapping; it is
essential that the victim is taken
away from their lawful guardian.

Consent of Consent of the person kidnapped is In case the person abducted gives
the victim immaterial, however, the consent of his or her consent, it is considered
the guardian can be material. that there is no offence.

The intention In kidnapping, the intention of the In abduction, the intention is

of the accused person kidnapping the minor or essential to determine the guilt of
person of unsound mind is the accused.
immaterial.

Nature and Since kidnapping is a substantive Sen subduction is an auxiliary

18
punishment offence it is a general punishment offence; it does not have a journal
prescribed in section 137 sub section punishment prescribed in BNS.
2 of BNS as imprisonment for a term Rather, the punishment of specific
up to 7 years and fine. type of abduction is given in
different sections of BNS.

Continuing of Kidnapping is not a continuing Abduction is a continuing offence

the offence offence. It is complete as soon as the because it does not end when a
minor or person of unsound mind is person is moved from a particular
removed place, rather continues with every
from lawful guardianship. movement from one place to the
other.

Completion The offence is completed as soon as It is a continuing offence and

of the offence the person is taken away from the involves the forcibly or beside fully
country or from his or her local taking a person from one place to
guardianship. another.

Place of Kidnapping outside India Abduction may be anywhere within

offence or without.

Severity of Kidnapping is a more serious Abduction is less severe as

the offence offence. compared to kidnapping.

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 AGGRAVATED FORM OF KIDNAPPING AND ABDUCTION

There are various sections which deals with the aggravated form of kidnapping
and abduction which are as follows:-

BNS Section 139 - Kidnapping or maiming a child for purposes of begging :-

(1) Whoever kidnaps any child below the age of eighteen years or, not being the lawful
guardian of such child, obtains the custody of the child, in order that such child may be
employed or used for the purposes of begging shall be punishable with rigorous
imprisonment for a term which shall not be less than ten years but which may extend to
imprisonment for life, and shall also be liable to fine.

(2) Whoever maims any child below the age of eighteen years in order that such child may be
employed or used for the purposes of begging shall be punishable with imprisonment which
shall not be less than twenty years, but which may extend to life which shall mean
imprisonment for the remainder of that person’s natural life, and with fine.

(3) Where any person, not being the lawful guardian of a child below the age of eighteen
years employs or uses such child for the purposes of begging, it shall be presumed, unless the
contrary is proved, that he kidnapped or otherwise obtained the custody of such child in order
that such child might be employed or used for the purposes of begging.

(4) In this section “begging” means

(i) soliciting or receiving alms in a public place, whether under the pretence of singing,
dancing, fortune-telling, performing tricks or selling articles or otherwise;
(ii) entering on any private premises for the purpose of soliciting or receiving alms;
(iii) exposing or exhibiting, with the object of obtaining or extorting alms, any sore, wound,
injury, deformity or disease, whether of himself or of any other person or of an animal;
(iv) using such a child as an exhibit for the purpose of soliciting or receiving alms.39

39 The Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023), s. 139.

20
Key Explanation -
Kidnapping or Custody for Begging (Clause 1):
Offense: Kidnapping or obtaining custody of a child (under 18 years) for the purpose of
using them in begging.
Punishment: Rigorous imprisonment ranging from 10 years to life, along with a fine.

Maiming for Begging (Clause 2):

Offense: Maiming or physically injuring a child to use them for begging.
Punishment: Imprisonment of not less than 20 years, extending to life imprisonment (the
person’s entire natural life), along with a fine.

Presumption of Intent (Clause 3):

If a person, who is not the lawful guardian, uses a child for begging, it is presumed they
kidnapped or obtained the child for that purpose unless proven otherwise.

Definition of Begging (Clause 4): Begging includes:

1. Soliciting alms in public, including through performance or trickery.
2. Entering private premises to beg.
3. Exhibiting injuries or deformities (of self or others) to gain sympathy for alms.
4. Using a child as a tool to solicit alms.40

BNS Section 140 - Kidnapping or abducting in order to murder or for ransom etc. :-
(1) 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.

Illustrations :- (a) A kidnaps Z from India, intending or knowing it to be likely that Z may be
sacrificed to an idol. A has committed the offence defined in this section.

40 Section 139 of BNS, available at: https://lawrato.com/bharatiya-nyaya-sanhita/bns-section-139

(last visited on April 10, 2025).

21
(b) A forcibly carries or entices B away from his home in order that B may be murdered. A
has committed the offence defined in this section.

(2) Whoever kidnaps or abducts any person or keeps a person in detention after such
kidnapping or abduction, and threatens to cause death or hurt to such person, or by his
conduct gives rise to a reasonable apprehension that such person may be put to death or hurt,
or causes hurt or death to such person in order to compel the Government or any foreign State
or international inter-governmental organisation or any other person to do or abstain from
doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life,
and shall also be liable to fine.

(3) 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.

(4) 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.41

Key Explanation -
Kidnapping for Murder (Clause 1):-
Offense: Kidnapping or abducting someone with the intent or knowledge that the person may
be murdered or put in danger of being murdered.
Punishment: Imprisonment for life or rigorous imprisonment for up to 10 years, along with a
fine.
Example (a): Kidnapping someone for ritual sacrifice.
Example (b): Forcibly taking someone with the intent of murder.

Kidnapping for Ransom (Clause 2):-

Offense: Kidnapping someone and detaining them, threatening to harm or kill them to
compel someone (like a government or individual) to act or pay a ransom.
41 The Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023), s. 140.
22
Punishment: Death penalty or life imprisonment, along with a fine.

Wrongful Confinement (Clause 3):-

Offense: Kidnapping with the intent to wrongfully and secretly confine someone.
Punishment: Imprisonment for up to 7 years, along with a fine.

Grievous Hurt, Slavery, or Unnatural Lust (Clause 4):-

Offense: Kidnapping or abducting someone with the intent to cause grievous harm,
subjecting them to slavery, or unnatural lust.
Punishment: Imprisonment for up to 10 years, along with a fine.42

BNS Section 141 - Importation of girl or boy from foreign country :-

Whoever imports into India from any country outside India any girl under the age of twenty-
one years or any boy under the age of eighteen years with intent that girl or boy may be, or
knowing it to be likely that girl or boy will be, forced or seduced to illicit intercourse with
another person, shall be punishable with imprisonment which may extend to ten years and
shall also be liable to fine.43

Key Explanation:-
Offense:- Importing a girl under 21 years or a boy under 18 years into India from a foreign
country with the intent or knowledge that the person may be forced or seduced into illicit
intercourse with another person.
Age Limits:- Girls: Below 21 years and Boys: Below 18 years.
Intent or Knowledge:- The crime is committed if the importer intends or knows it is likely
that the victim will be subjected to illicit intercourse.
Punishment:- Imprisonment up to 10 years and Liability to fine.
Focus on Exploitation:- The section specifically addresses trafficking minors for sexual
exploitation, highlighting the protection of children from being imported for illegal
purposes.44

42 Section 140 of BNS, available at: https://lawrato.com/bharatiya-nyaya-sanhita/bns-section-140

(last visited on April 10, 2025).
43 The Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023), s. 141.
44 Section 141 of BNS, available at: https://lawrato.com/bharatiya-nyaya-sanhita/bns-section-141
(last visited on April 10, 2025).

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BNS Section 142 - Wrongfully concealing or keeping in confinement, kidnapped or
abducted person :-
Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully
conceals or confines such person, shall be punished in the same manner as if he had
kidnapped or abducted such person with the same intention or knowledge, or for the same
purpose as that with or for which he conceals or detains such person in confinement.45

Key Explanation :-
Knowledge of Kidnapping/Abduction: - The person who conceals or confines must have
knowledge that the individual has been kidnapped or abducted.
This provision targets those who, after the kidnapping or abduction, assist in hiding or
imprisoning the victim, despite knowing the illegal nature of their confinement.
Punishment:- The individual will be punished in the same manner as the person who
originally kidnapped or abducted the victim.
The intention, knowledge, or purpose for which the concealment or confinement is done
mirrors that of the original act of kidnapping or abduction, ensuring that the accomplice faces
equal legal consequences.
Objective:- The law aims to discourage not just the act of kidnapping or abduction but also
the involvement of any third parties who help prolong the victim’s suffering through
concealment or confinement.
Scope of the Law:- This section applies even if the person concealing or confining the victim
did not personally commit the kidnapping or abduction but is complicit in continuing the
illegal act.46

45 The Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023), s. 142.

46 Section 142 of BNS, available at: https://lawrato.com/bharatiya-nyaya-sanhita/bns-section-142
(last visited on April 10, 2025).

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 CONCLUSION

Kidnapping and abduction are criminal offences that violate an individual’s fundamental
right to liberty and security. Understanding the differences between these two acts, as defined
under the BNS, is crucial for comprehending the legal implications associated with each
offense.
While kidnapping focuses on the intention of extracting ransom or causing harm, abduction
revolves around unlawfully removing an individual from their lawful guardianship. The
provisions and penalties outlined in the BNS ensure that these crimes are treated with the
gravity they deserve and emphasize the importance of safeguarding personal liberty within
society.
The above explained offences are covered under the Bharatiya Nyaya Sanhita, 2023 which
are very important to understand as the people out there use these against the community and
sometimes due to unawareness, the proper complaints are not registered and legal steps are
unserved against them and hence justice is not provided. Kidnapping and abduction are
serious offenses under the Indian Penal Code. These offenses can lead to severe punishments,
including life imprisonment. It is essential to be aware of the provisions related to kidnapping
and abduction to avoid committing such offenses. If you or someone you know has been a
victim of kidnapping or abduction, it is important to report the incident to the police
immediately.
Kidnapping and abduction infringe the basic right to life and liberty of a person, as embodied
by Article 14 of the Indian Constitution. With the steady increase in the number of victims of
these heinous crimes, the need to prevent the cases of kidnapping and abducting has become
particularly important, especially when it is done for forced beggar, maiming, and sexual
intercourse.
To battle, the trafficking of children, co-task among the legal frameworks, the government
bodies, and the non-government bodies are extremely important. Co-task among nations
should also be cultivated to counter this phenomenon, by consistency in punitive
arrangements. This consistency can be accomplished through the endorsement of
international instruments and the national implementation of these international humanitarian
instruments.

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 BIBLIOGRAPHY

Primary source:

1. Indian Penal Code,1860 (22nd Edition) by Prof. S.N. Mishra.

2. Indian Penal Code, 1860 ( 8th Edition) by K.D Gaur.
3. Criminal Law (15th Edition ) by P.S.A Pillai.
4. Bhartiya Nyaya Sanhita 2023, Bare act, of Taxmann.

Secondary Source :-

1. Kidnapping and Abduction, available at: https://epgp.inflibnet.ac.in (accessed on

April 10, 2025).

2. Kidnapping and Abduction, available at: https://www.freelaw.in (accessed on April

10, 2025).

3. Kidnapping and abduction, available at: https://www.abhidhvajlawjournal.com

(accessed on April 10, 2025).

4. Section 139 of BNS, available at: https://lawrato.com/bharatiya-nyaya-sanhita/bns-

section-139 (accessed on April 10, 2025).

5. Kidnapping, available at: https://www.drishtijudiciary.com (accessed on April 10,

2025).

6. Abduction, available at: https://www.drishtijudiciary.com (accessed on April 10,

2025).

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