This article is written by Khyati Basant and further updated by Pujari Dharani. This article explains the offence of kidnapping from lawful guardianship by elaborating on its essential ingredients, nature and landmark judgements. This article also provides effective and ineffective defences available to the accused. Provisions related to kidnapping under both the Indian Penal Code (IPC) and Bhartiya Nyay Sahita (BNS) have been comprehensively discussed.

Introduction

Children are the most lovable thing that happens to any parent. Just a small harm to their children cannot even be imagined by the parents. The disappearance of their child, even for some time, haunts them, as do the children kidnapped as they are taken to darkness from safe homes.

The annual report of the National Crime Records Bureau (NCRB) titled “Crime in India” for the year 2022 shows that 83,350 children were reported missing in 2022 and the numbers have increased over the last five years.

Keeping all these in mind, the framers of the Penal Code considered the nature of the offence of kidnapping a grave and serious offence. The offenders will be punished with a higher punishment. This article discusses this offence in detail; let us look into it.

Kidnapping under the Indian Penal Code, 1860

The Indian Penal Code, 1860 (hereinafter mentioned as “IPC”) provided that the act of kidnapping is a criminal offence under the Code. Provisions under Part 5 of Chapter XVI (Offences affecting the human body), namely, Sections 359, 360, 361 and 363 of the IPC deal with the offence of kidnapping and aggravated forms of kidnapping are dealt with under Sections 363A to 374. These provisions will be replaced with Part 4 of Chapter VI of the BNS, which will take effect from 1st july, 2024. 

Kidnapping under the Bharatiya Nyaya Sanhita, 2023

Section 137 of the Bharatiya Nyaya Sanhita, 2023 (hereinafter mentioned as “BNS”) deals with the offence of kidnapping. See the table below for a comparative chart of IPC and BNS provisions on the offence of kidnapping.

Offences	Section under the Indian Penal Code, 1860	Section under the Bharatiya Nyaya Sanhita, 2023
Kidnapping	359	137(1)
Kidnapping from India	360	137(1)(a)
Kidnapping from lawful guardianship	361	137(1)(b)
Punishment for kidnapping	363	137(2)

The word “kidnapping” is defined neither in the IPC nor in the BNS. Kidnapping literally means “child stealing,”  but the crime was not limited strictly to the taking of babies. It is an aggravated form of improper confinement. In common parlance, kidnapping is the unlawful removal or transfer of an entity and the unjust confinement of the person against his or her will. Although the word “kidnapping” is not defined in the BNS, it provides essential ingredients by which an act would constitute the offence of “kidnapping” of various forms.

Kinds of kidnapping  (Section 137 BNS)

Clause (1) of Section 137 of the BNS (Section 359 of the IPC) deals with the kinds of Kidnapping. It says the offence of kidnapping is of two kinds, namely,

1. Kidnapping from India, and 
2. Kidnapping from lawful guardianship.

Kidnapping from India

As per sub-clause (a) of Section 137(1) of the BNS (Section 360 of the IPC), an act constitutes the offence of kidnapping from India when it fulfils the following essentials.

1. A person shall be transmitted from India. Such a person may be a major or a minor.
2. Such transmission shall be beyond the boundaries of India;
3. Such transmission shall be without the consent of that person or of any person legally authorised to consent to such transmission. 

Clause (2) of Section 137 of the BNS (Section 363 of the IPC) provides for punishment for kidnapping from India. The punishment is the same as that of the offence of kidnapping from lawful guardianship.

Kidnapping from lawful guardianship

According to sub-clause (b) of Section 137 of the BNS (Section 361 of the IPC), the offence of kidnapping from lawful guardianship is said to be committed when the following essentials are satisfied.

1. Taking or enticing away a person;
2. Such a person shall be a child or an unsound person;
3. Such taking or enticing shall be out of the keeping of the lawful guardian of that person; and
4. Such taking or enticing shall be without the guardian’s consent.

The purpose of this section is to protect minors and persons with unsoundness of mind from being exploited and to protect the rights of guardians to have their wards’ lawful charge or custody.

Object of Section 137(1)(b) BNS

In 1965, the Supreme Court gave its observations as to the purpose and object of Section 361 of the IPC (Section 137(1)(b) of the BNS) in the case of S. Varadarajan vs. State of Madras (1965) (hereinafter mentioned as “Varadarajan”). In this case, the accused and the person taken were loving each other. Knowing the same, the father shifted her to a far place, i.e., to her relative’s house. However, she still managed to elope with the accused and move to various places. The question before the court was whether the accused was guilty of kidnapping from lawful guardianship. To know more about this case, click here.

The Supreme Court, in the above-mentioned case, noted that the phrase “taking or enticing” is also found in another provision of the IPC, i.e., Section 498, which deals with the offence of enticing, taking away or detaining with criminal intent a married woman. The Court, in this regard, stated that one cannot blindly and mechanically take the meaning of the phrase “taking or enticing” under Section 498 of the IPC while interpreting the same phrase under Section 361 of the IPC owing to its differences in respect of their objects. The Court, in this way, distinguished the objects behind the said two provisions by stating that the purpose of Section 498 of the IPC is to protect the rights of the husband. In contrast, Section 361 is enacted to protect the rights of the minor or person of unsound mind rather than the protection of guardians’ rights.

However, the Supreme Court, in 1973, took a different stance as to the object of Section 361 of the IPC in the case of State of Haryana vs. Rajaram (1973) (hereinafter mentioned as “Rajaram”). The Court held that the object of Section 361 of the IPC is not only to protect the minor person or person of sound mind from being seduced for immoral and illegal purposes but also to protect the guardians’ rights to have custody or charge over their wards.

Essentials for kidnapping from lawful guardianship under Section 137(1)(b) BNS

Some of the following essentials must be fulfilled to constitute the offence of kidnapping from lawful guardianship.

Taking or enticing away a person

Either the act of taking or enticing away a person by the accused is one of the essential ingredients to constitute the offence of kidnapping from lawful guardianship. The legal meaning of the said words is different from the literal meaning. It is necessary to understand those words and look into the interpretation given by the judiciary on the said words.

Interpretation of the word “taking”

Although the act of “taking” is essential to constitute an offence of kidnapping from lawful guardianship, this word was not defined or explained in the Penal Code. The term “takes” means causing, with or without the use of force to move, escort or fall into possession. Taking does not need to consist of a single act. A whole series of acts could together constitute the act of taking.

Furthermore, it is not necessary to carry out actual physical removal of a person, of minor age or having unsoundness of mind; it is sufficient if the offender persuades a minor or person of unsound mind so as to create willingness in that person to leave his/her house, where he/she was in the custody of the guardian. This was decided by the Supreme Court in the Prakash vs. State of Haryana (2004) and Rajaram cases, where it was stated that the elements of force or fraud are not necessary while the act of taking or enticing is being committed, and persuasion is enough to constitute the act of taking as the offence of kidnapping. 

To establish the same by the prosecution, the Supreme Court in the Varadarajan case decided that proper evidence, which proves that the accused at some point before the disputed incident persuaded the person taken, has to be adduced before the court, even if the accused did nothing immediately before the said incident. Thus, to make the accused guilty of his act, which, in law, must amount to “taking.” In V.K. Rajappan vs. State of Kerala (1960), it was noted that the accused must commit an act that may be regarded as the proximate cause of the person leaving the guardian as he did. While commenting on this rule of law, the Supreme Court held in the Varadarajan case that a mere circumstance that the accused’s act was not the immediate cause of the girl leaving the custody of her father would not absolve him if he had solicited her at an earlier stage or induced her to take the step in any way.

On the other hand, if the prosecution did not adduce any evidence establishing their allegations that the accused performed some active role, which can be said to be the element of persuasion upon the minor or unsound person to leave her house, then the court cannot take the presumption that the accused committed the offence of kidnapping only on the basis that such a minor or unsound person met the accused immediately after his/her coming out of the keeping of his/her guardian or just because the accused helped that person in that process of leaving her house. The intricacies of this defence will be dealt with in detail in the later part of this article.

Interpretation of the word “enticing”

The word “entice” involves an idea of inducement or allurement in another through exciting hopes or desires. It means the child is seduced or attracted to follow or go with the offender. The minor’s mental attitude is relevant to the enticement. There is no fixed formula to be followed so as to deem that the accused enticed a person. Enticement can be of various kinds and whether an accused’s act amounts to ‘enticing’ is to be decided by the court considering the particular facts of that case.

When the accused promised a minor girl that he would marry her so that she would leave her house, the Supreme Court regarded this promise as an act of “enticing”, in the case of Moniram Hazarika vs. State of Assam (2004), and, thus, convicted him under Section 361 of the IPC.

Difference between “taking” and “enticing”

The act of taking involves some physical act, though it is not mandatory to have force. Whereas, the act of enticing is to influence or manipulate the mind of the person taken. For “taking”, the mental attitude of the minor is not considered. That is, irrespective of whether the minor is willing or not, the physical act of taking will be completed. For “enticing”, the minor must do some act due to the offender’s inducement to do so; if not induced, the minor would not do such an act.

When is the act of taking complete?

The act is complete only when the minor is out of the legal possession of his/her guardians. When the accused takes the minor away with him, the act of taking is complete, whether he is willing to do so or not. Furthermore, it is not a continuing offence so long as the minor came out of the keeping of his/her guardian.

The distance to which the minor is being taken is also immaterial. The Punjab and Haryana High Court, in the case of Chhajju Ram Maru Ram and Anr. vs. State of Punjab (1968), stated that it is not necessary to consider the distance to which the minor was taken by the courts while deciding whether the accused took away the minor from the keeping of the guardian.

Besides, the distance, even the time period during which the child was out of the custody of the guardian, is immaterial to consider in passing a conviction order against the accused. In State of Rajasthan vs. Babulal (1965), the Rajasthan High Court observed that “no matter what is the duration of the removal of the minor from lawful guardianship, taking away a girl even for sometimes is kidnapping.”

In Deb Prosad vs. King (1950), the Calcutta High Court observed that the act of taking is said to be completed when such a child is taken out of the lawful guardianship and the said act is not a continuing or continuous act.

What does not amount to “taking” or “enticing”

Mere help or assistance to aid the design of the person taken

If an accused merely allowed or even helped a person, who is minor or unsound, in aiding the completion of that person’s design or plan of going out of the keeping of his/her guardian and never to come back home, which was formulated by that person on his/her own free will, and when there is no act of persuasion or encouragement by the accused to fulfil the same, the accused will not be held liable for the offence of kidnapping from lawful guardianship under Section 137(1)(b) of the BNS.

Such acts of help, assistance or facilitation on the part of the accused could not be considered an inducement or persuasion and, hence, cannot be described as “taking or enticing” necessary to constitute the offence of kidnapping from lawful guardianship as decided in the case of Varadarajan. Thus, there is a difference between “taking” and the accused “allowing” a minor to accompany him, as noted by the Orissa High Court in Biswanath Mallick vs. State of Orissa (1995) (hereinafter mentioned as “Biswanath”).

It has also been explained by the Orissa High Court in Biseswar Misra vs. The King (1948) that mere passive consent on the part of an accused to give shelter to the minor does not amount to the act of “taking or enticing” a minor. But if the accused actively brought about her stay in the house by playing on her weak and hesitant mind, then such an act may be equivalent to “taking” the girl within the meaning of Section 137(1)(b) of the BNS.

In Jai Narain vs. State of Haryana 71 Punj LR 688, the person taken on her own free will left her guardian’s house at midnight and the same was not caused by the accused; he neither enticed her to leave the house nor went to her house and brought her from there. Thus, the Punjab and Haryana High Court acquitted the accused of the charges under Section 363 of the IPC.

Thus, the accused will not be liable if he/she did not take any steps, not even persuasion, and it is that minor or unsound person, who, on his/her own free will, came out of the keeping of his/her guardian. For example, when a minor girl leaves her father’s house without any coercion, incitement, or blandness held by a man to her, such that she has gone relatively far from home and then goes to him, it may be his moral obligation to return her to the custody of her parents, but his inability to do so will not amount to an offence of kidnapping. This suggests an offence only exists when the accused “takes” the minor out of the lawful guardian‘s custody. There would be no responsibility whatsoever on the part of the perpetrator for his act of not sending the minor to his/her guardian, or even for not warning her to go back to her home and then sheltering her.

For a better understanding of this aspect, see defences and the landmark case of Varadarajan.

Such a person shall be a child or person of unsound mind

The person who was kidnapped by the offender must be a child or a person of unsound mind. Here, whether the accused has knowledge that the aggrieved person is a child or is an unsound person is immaterial. 

Also, the accused will not be liable for the offence of kidnapping if he takes away a person, who is major and is normally of sound mind during a state of unconsciousness that was caused by the accused or otherwise. To know more about this, click here.

Therefore, taking or enticing a person, who is major and has no unsoundness in mind, out of the keeping of the guardian without the consent of such guardian will not fall under the category of kidnapping from lawful guardianship. Although this is not an offence of kidnapping, it may be an offence of abduction as per the facts of that case. To know more about the difference between the offences of kidnapping and abduction, click here.

Who is a child

Section 137(2) of the BNS defines the word “child” as a person who is under 18 years of age.

Previously, since 1949, the IPC, under Section 361, specified the age limit to call a person a minor. It says, in case such a person is a boy, then his age shall be less than sixteen years of age to be called a minor person; if such a person’s gender is female, she is minor until she becomes eighteen years old. Here, there is no one fixed age limit for both genders. However, in BNS, as it simply mentions “child”, we can tell there is no difference between genders.

The accused in the Biswanath case believed a girl to be major by her appearance and took her away from her house. In the trial, he pleaded ignorance of her age. The Orissa High Court denied his plea, held that no knowledge about the minority of age is not a defence and convicted him for the offence of kidnapping.

How to prove the age of the person allegedly kidnapped

If the prosecution is claiming that the person allegedly kidnapped is a child, then it is required to be proved by solid evidence, as the minority of the victims determines the crucial question of whether the accused is liable for the offence of kidnapping. For instance, in Mohan vs. State of Rajasthan (2003), the offence of kidnapping was not made out as the prosecution failed to establish the victim’s minority age at the occurrence of the incident. It is, thus, pertinent to note that, if there is a conflict between medical evidence and documentary evidence and the court cannot conclude which is correct, then the benefit of the doubt will go in favour of the accused.

To determine the age of a person, the following methods are used. The Gauhati High Court, in Taimus Ali vs. State of Assam, 1977 CrLJ (NOC) 243 (Gau), mentioned the following reports as methods to determine the age of the person in question:

1. Bone ossification tests, by which the age of the bone can be found;
2. Tests on teeth;
3. Tests on height and weight; and
4. Miscellaneous signs.

The Gauhati High Court then observed that “when (the following reports) considered individually, little reliance is to be placed on each individual test; but when taken together, they may offer a fairly reliable means to ascertain the age.”

The prosecutor should be careful in choosing the documents that need to be submitted to the court to determine the age of the victim. Also, it is always suggested to look for any documentary evidence, which has more evidentiary value in these cases, rather than merely relying on oral evidence.

Unlike the Protection of Children from Sexual Offences Act, 2012 and the Juvenile Justice (Care and Protection of Children) Act, 2015, there are no provisions in the BNS explaining how the age of a victim can be determined; it is better to look into the judicial decisions in various cases.

Case	Court’s decision
Sidheswar Ganguli vs. State of West Bengal (1958)	The Supreme Court regarded the birth certificate of the minor girl as a conclusive piece of evidence. However, because this crucial document is not obtained by everyone in our country, the Court stated that the courts or jury, while conducting such a trial, should conclude after going through the facts and circumstances of that particular case and examining the physical appearances of the person whose age is in dispute and evidence before it.
State of Chhattisgarh vs. Lekhram (2006)	The Supreme Court held that, although the school records are admissible to prove the victim’s age, the same cannot be deemed as conclusive evidence and, therefore, requires corroboration with other cogent evidence.
Ramesh Chandra Agrawal vs. Regency Hospital (2009)	The Supreme Court held that a testimony by the doctor as to the victim’s age is not more than a medical opinion which is an expert opinion under Section 39 of the Bharatiya Sakshya Adhiniyam, 2023 (Section 45 of the Indian Evidence Act, 1872) and, therefore, is only of advisory nature.
Dilip vs. State of Madhya Pradesh (2013)	This is a case of rape, where the testimonies of the father of the victim and her teacher as to her age are contrary to that of the school certificates, and, hence, the Supreme Court refused to accept those certificates, stating that those are not solid and material evidence.
State of Madhya Pradesh vs. Anoop Singh (2015)	In this case, the Supreme Court held that the bone ossification tests cannot be the sole evidence for age determination.

Out of keeping of the lawful guardian

Here, we can observe that there are two expressions, namely, “keeping” and “lawful guardian” whose meanings are required to be understood accurately as per the object of the provision, i.e., Section 137 of the BNS, and the intention of the legislature so that we will get to know the true meaning of these expressions for the present purpose.

What is “keeping”

The word “keeping” means within the guardian’s protection or care. The minor need not be in the guardian’s physical custody. It connotes the idea of charge and safeguard, whether real or constructive. A child may not always be in the guardian‘s real keeping, i.e., direct physical custody; as long as the child’s whereabouts are known and the child’s movement is controlled, the child is said to be in the guardian’s keeping. The latter case is the case of constructive keeping. The child is said to be kidnapped when a child is taken to an area outside the circle where the guardian no longer knows the child’s whereabouts nor has any control over the movement of the child.

The Supreme Court, in the case of State of Haryana vs. Rajaram (1973), stated “the use of the word ‘keeping’ in the context connotes the idea of charge, protection, maintenance and control.” Also, the Court noted that the concept of a guardian’s custody appears as if the minor has freedom over his actions and movements; however, the guardian will gain control over the minor if the necessity arises. For example, in the case of Bhagban Panigrahi vs. State of Orissa (1989), the girl, who was kidnapped from a hostel room where the father visited her once, is said to be under the keeping of her father, though the room was rented for the purpose of examination.

An orphan is under whose keeping

Unfortunately, a few children have no guardians to take care of them. Technically, they are under no one’s custody or keeping. Does that mean the kidnapping of orphans is not punished and the kidnappers walk free, taking the plea that such taking of a child was not out of the keeping of a lawful guardian? The answer is absolutely no. Here, it is important to reiterate the object and aim of the provision of Section 137(1)(b) of the BNS, i.e., not just to protect the rights of the minor persons, but also to protect the rights and privileges of their guardians. Therefore, the kidnapping of orphans is also a punishable act under Section 137(2) of the BNS.

In Thakorlal D. Vadgama vs. State of Gujarat (1973), the Supreme Court addressed the question of whether the independent movements of a child are incompatible with the control of the guardian while considering the concept of “keeping”. The Court held that both are compatible with each other. The Court highlighted that ours is a country where many children are subjected to the drudgery of service or slavery and are sent to other states by their parents. Keeping this in mind, if the argument of the accused persons that the movements of these children are not under the control of the guardian is accepted by the courts, then offenders would walk free without being punished for their criminal acts, which would cause grave injustice to those innocent children and their lawful guardians.

In Anop Kunver vs. State of Gujarat (1984) 1 Crimes 44, an orphan in Baroda, who is working in a canteen, is allured by a eunuch that he will get a better working opportunity if accompanied by him. Induced by such allurement, the boy left the job in the canteen and joined the gang of eunuchs, where he was injured by them. The accused in this case argued that the boy is not under the keeping of any lawful guardianship, therefore, one of the essential ingredients of the offence is not present. The Gujarat High Court relied on the holding in the case of Thakorlal D. Vadgama vs. State of Gujarat (1973) and held that the notion of “keeping” is wide enough to include the cases of orphans and any other similar cases.

Who is a lawful guardian

Here, we can observe that the legislature used the term “lawful”, instead of “legal”, knowing that there is a difference between “lawful guardian” and “legal guardian”. All legal guardians are lawful guardians, but not all lawful guardians are legal guardians. The expression “legal guardian” is prevalent in Indian laws like the codified Hindu laws; still, the preference of the term “lawful”, instead of “legal”, implies that the legislature intended to give a wider meaning to the said expression so that any instance of kidnapping can be punished.

An explanation of Section 137(1)(b) provides the meaning of the expression “lawful guardian” to avoid any ambiguity. It is an inclusive definition. It says that the expression “lawful guardian” also includes persons lawfully entrusted with the duty of taking care of or keeping custody of such minors or unsound persons. The following are, thus, said to be the requisites to be satisfied in order to deem a person a lawful guardian of a minor.

1. The said person has the custody of a minor or an unsound person.
2. Such custody was acquired by the said person due to the lawful entrustment. Here, lawful entrustment means that the person was entrusted with such custody by the legal guardian, normally the parents of the minor or a person of unsound mind, or persons who are declared as a legal guardian by a competent court. Such entrustment may be expressly conferred, whether written or oral; there can also be implied entrustment.

For example, if a father of a girl asks his friend or a servant to drop the girl off at school, the friend or the servant is said to be a lawful guardian, though not a legal guardian, for the said period and for the said purpose as he was lawfully entrusted by the father with such duty as to the girl.

The courts, by looking at the facts and circumstances of the case and how the parties, especially the person who took the care and custody of the minor or unsound person, conducted themselves in their normal course, will decide whether such a person is a lawful guardian or not.

Now, a doubt may arise: what if the accused himself is the lawful or legal guardian? Would he be liable for the offence of kidnapping? To know what BNS stated and the judicial decisions by courts, click here.

What is “out of the keeping”

From the above-provided explanations, it now understands what keeping means and who is the lawful guardian. We know that the lawful guardian has charge or control over their wards. If such a child came out of such charge or control by the act of the accused, it is said that the accused took the child out of the custody of the lawful guardian. In Arathan Sadasivan vs. State of Kerala (1966), the Kerala High Court stated that the prosecution must provide some evidence proving that the accused committed some positive act that caused the girl to go out of the custody of the lawful guardian.

Without the consent of the lawful guardian

The child’s consent is completely irrelevant and it is the guardian’s consent alone that is taken into consideration because the child is deemed unable to give valid consent. This was held by the Supreme Court in the case of State of Haryana vs. Rajaram (1973).

It is important to note that, if consent by the guardian is given under fraud or misrepresentation, it is said that the consent is not free and, hence, is not a valid consent in the eyes of the law. The convicted party shall also be responsible for the crime, even if the guardian consents after the crime is committed. The Allahabad High Court in Ganesh vs. King Emperor 10 CrLJ 295 observed that the “consent given by the guardian after the commission of the offence would not make it any the less an offence.”

Justice Gajendragadkar, clearly states, in the case of State vs. Harbansing Kisansing (1953), that the mental attitude of the minor is irrelevant in the case of ‘taking’. If the minor girl takes all the necessary steps to leave her guardian, it implies that she does so by her own free will or consent.

Intention and motive are not required

The intention and motive of the accused for the commission of the offence are not essential ingredients to establish the case of kidnapping from lawful guardianship by the accused and the prosecution has no burden to prove the same. This implies that, even if the accused took a minor out of the guardian’s keeping for a good cause, he is still liable for the kidnapping offence. Thus, it should be noted that kidnapping is a strict liability offence, i.e., the accused’s intention is immaterial. 

Nevertheless, if the prosecution wants to prove the intention of committing kidnapping on the part of the accused in order to enhance punishment, then such intention can be proved from the circumstances of the case, whether before the disputed incident or after or at the time of the commission of the occurrence.

Nature of offence of kidnapping from lawful guardianship 

The First Schedule of the Bharatiya Nagarik Suraksha Sanhita, 2023 (First Schedule of the Code of Criminal Procedure, 1973) provides the nature of the offence of kidnapping from lawful guardianship.

Cognizable 

The offence of kidnapping from lawful guardianship is a cognizable offence and the police-in-charge, who received the complaint and lodged a First Information Report (FIR) alleging the commission of the said offence by an accused, is authorised by law to take up the case for investigation and proceed to arrest the said accused even without any approval or warrant from a court of law. Thus, the legislature regarded this offence as serious enough and required immediate action on the part of law enforcement agencies like police officials.

Bailable

The offence of kidnapping from lawful guardianship is a bailable offence and the accused charged with the said offence can apply to the court for bail as a matter of right.

Non-compoundable

Section 359 of the BNSS (Section 320 of the CrPC) specifies which offences are compoundable by whom. Because the offence of kidnapping a lawful guardian is not mentioned under Section 359 of the BNSS, it can be concluded that the said offence is a non-compoundable offence.

Triable by the Magistrate of first class

After an investigation into the alleged offence of kidnapping from lawful guardianship and the submission of a police report by the police-in-charge, the case will be placed before the trial court for criminal proceedings against the said accused. Such a trial court will be presided over by the magistrate of first class.

Importance of investigation

For every offence, a thorough, proper and prompt investigation is crucial in order to catch the offenders before they abscond to a faraway place and save the lives of the victims. Nevertheless, in a kidnapping case, much more promptness with immediate actions is required on the part of the investigation agencies because there is no particular crime scene where Deoxyribonucleic Acid (DNA) traces of the offenders are present and all kinds of forensic sciences can be used to detect the actual offender. In cases of kidnapping, there are just clues and testimonies by the relevant persons and the burden is on the police in charge of the investigation to use their intellectual abilities to find the offender and the place where the person kidnapped was kept. Also, as time passes, the chances of catching the offender and saving the child reduce; this is the reason why quick actions by the investigating authorities are very crucial.

Defences that can be pleaded against the charge under Section 137(1)(b) BNS

If an accused against whom a complaint or an FIR is lodged under Section 137(2) alleging that he/she had committed the offence of kidnapping from a lawful guardian, then the accused, during the trial, can plead guilty or not guilty. If pleading not guilty, then any of the following defences have to be proved by the defence counsel, who was appearing for the accused’s case, beyond all reasonable doubt. However, one should keep in mind that the truth will prevail and, hence, he/she should not mislead the court by unlawful means in order to escape criminal liability despite having committed such a grave offence. On this note, the following are the defences that can be pleaded by the innocent accused who committed no crime.

Good faith

If the accused, charged under Section 137(2) of the BNS, took the child in good faith, believing he/she was entitled to do so, then the accused person is exempted from the criminal liability as provided under the exception clause of the said provision.

To avail of the above-said exemption, the following facts have to be proved by the defence counsel representing the accused.

1. The accused acted in good faith.
2. The accused believed either of the following facts.
   1. That he is the father of an illegitimate child; or
   2. That he is entitled to the lawful custody of such a child.
3. The accused took such a child out of the keeping of the guardian without his consent for a purpose, which was not immoral or unlawful. If the act of the accused is committed for some immoral or unlawful purpose, then this exemption will not be applied, and the accused will be held liable for his acts.

Because the definition of “lawful guardian” is made wider, it is possible to have more than one person as a lawful guardian for any particular child, unless he or she is an orphan. For example, the father and mother are natural guardians as per the personal laws. There may be persons, other than the parents, who are lawfully entrusted with the custody of the child. Hence, here, lawful guardians are more than one person. Now, a question may arise: what if one lawful guardian kidnaps his own child/ward from the custody of the other? Would the act amount to the act of kidnapping if the lawful guardian at that particular time did not consent to such taking? The answer is no. Thus, if a natural guardian takes or attempts to take away a minor from the custody of such a de facto guardian, there is no offence. In this regard, the following are a few precedents.

1. In the Court of its own motion vs. Ram Lubhaya & Anr. (1985), since birth, the child’s maternal uncle has custody over such a child. One day, the father, being the natural guardian, attempted to take away the child. This act of taking was held to be not an offence of kidnapping.
2. In Khyali Ram & Ors. vs. State of Uttar Pradesh & Anr. (1971), the mother was entitled to the custody of her child below seven years old. The accused, i.e., the father of that child, took the child from the mother’s custody without her consent. The Allahabad High Court acquitted the accused of the charges under Section 363 of the IPC.
3. In Vijay Kumar Sharma vs. State of Uttar Pradesh (1991), the Allahabad High Court highlighted Section 6 of the Hindu Minority and Guardianship Act, which conferred the position or status of natural guardian of a child to the father of that child. In view of the same, the Court held that the natural guardian would not be guilty of kidnapping from lawful guardianship.
4. Even if such a taking is committed by the third person at the instance of the natural guardian, it does not amount to “taking” and, hence, is not an offence of kidnapping. This was decided in the case of Korban vs. King Emperor (1904).
5. In Nageshwar Jha vs. State of Bihar (1962), the Patna High Court held, as per Hindu law, that only the father and mother of a child have absolute rights over the custody of such a child. Any other relations, like the maternal uncle’s rights over such a child, will be subject to the absolute rights of the parents. If such relatives, other than natural guardians, remove the child from the custody of the lawful guardian, the relationship will be no defence.
6. However, if the mother obtained divorce by an order of the court and the biological father of the child took the child from the custody of the child’s mother, the father cannot take on the defence of the natural guardian. The case of State vs. Ramji Vithal Chaudhari & Anr. (1957) with similar facts where the father, who removed the child forcibly was convicted for the offence of kidnapping from lawful guardianship.

Mere help or assistance to aid the design of such a person

It is important to understand one of the Supreme Court’s landmark precedents, i.e., S. Varadarajan vs. State of Madras (1965), where the Court held that it is not just to presume or infer that the accused has committed the offence of kidnapping from lawful guardianship under Section 361 of the IPC if the facts and circumstances of the instant case are similar to the following. (For better understanding, let us take the accused as A and the minor person, who was allegedly taken or enticed out of the keeping of that person’s guardian without the consent of such guardian, as B).

1. B, the minor person, has already come out of the keeping of his/her guardian;
2. This was done in pursuance of the minor’s design or plan of not returning back to the guardian’s house
3. Later, B joined A, the accused;
4. The accused did either or both of the following acts;
   1. A allows to accompany or stay with him/her;
   2. A helped or assisted the minor to move from one place to another.

Here, it is pertinent to note that the Supreme Court, in the Varadarajan case, termed the act of the accused in the above facts and circumstances as facilitating the successful completion of the minor’s design or intention; however, it never deemed such acts on the part of the accused to be the offence of kidnapping under Section 361 of the IPC.

Mere unconsciousness does not constitute unsoundness of mind

It was already mentioned before that the aggrieved party, a party who was kidnapped, must either be a child or a person of unsound mind, as provided under Section 137(1)(b) of the BNS. However, the state of unconsciousness in the mind of a person cannot be considered a state of unsoundness of mind in the eyes of the law, especially if such a person is usually of sound mind. For example, a patient who was made unconscious under an anaesthetic given by the doctors for the purpose of performing an operation on him will not be regarded as a person of unsound mind by the courts just because he became unconscious. 

In the case of Din Mohammad 1939 20 Lah 517, it was held that the girl, who was made unconscious by the accused by use of datura poisoning, could not be treated as a person of unsound mind and the accused was not convicted for the offence of kidnapping from lawful guardianship under Section 361 of the IPC for taking that girl away from her guardians.

Benefit of doubt

The accused charged with Section 137(2) of the BNS can always plead for the benefit of the doubt and, if the prosecution does not prove the case of kidnapping from lawful guardianship against the accused by establishing every essential beyond all reasonable doubt, then the court will grant the benefit of the doubt. For the same reason, the defence counsel appearing on behalf of the accused must specify to the court what essentials or aspects of the offence in question are not proved by the prosecution.

In Krishna Maharana vs. King-Emperor (1929) I.L.R. 9 Pat. 647, the prosecution, to prove the minority of the girl who was allegedly kidnapped by the accused, submitted the school leaving certificate, instead of the existing proper documents like a horoscope, raising doubt as to the age of the girl. Besides this, the defence counsel also presented two doctors who stated in the trial that the girl was a major. By examining the evidence from both parties, the Patna High Court granted a benefit of the doubt in favour of the accused, as the minority of the girl was not proved by the prosecution beyond all reasonable doubt.

Defences devoid of legal basis

The accused had no ill intention

The provision of Section 137(1)(b) of the BNS clearly says that the intention of the accused is not required to be convicted for the offence of kidnapping from the lawful guardianship and the same was reiterated by many courts in various cases. Thus, pleading that the accused has no intention to kidnap the person taken will go in vain and the conviction will still be upheld, provided all the necessary aspects and essentials are established by the prosecution.

No knowledge about the age of the victim

If an accused defended himself by saying that he had no knowledge about the victim’s age, it would not help him escape criminal liability. Even if such an assumption is bona fide or has a reasonable cause, like if the victim herself or himself overstated his/her age, it will still not absolve the accused from the conviction for the offence of kidnapping; the law regards that the accused committed such an act at his own peril.

R vs. Prince is the landmark judgement in common law where the Court denied the accused’s defence of no knowledge of the girl taken and held that the same ignorance is immaterial in the case of kidnapping. Because the intention of the accused is immaterial in kidnapping cases and the act itself is punishable, the accused cannot plead that he has no knowledge about the age of the victim, i.e., the person who was kidnapped.

In Arathan Sadasivan vs. State of Kerala (1966), the Kerala High Court held that, even if the girl herself lied to the accused by stating her age was more than her actual age, there is still no defence for the accused.

Consent by the victim

It was already mentioned before that whether the victim, whether a child or an unsound person, consented to such kidnapping is immaterial and the same was affirmed by the Supreme Court in various cases. In the Varadarajan case, the Supreme Court clearly stated that, even if the victim is of such age as less than eighteen years old and is mature enough to have consented to the contemplated act of the accused, i.e., taking his/her person out of the keeping of the lawful guardian, such consent is immaterial for the court to decide the conviction under Section 137(2) of the BNS.

Possibility to escape

It would be a bad defence if the accused pleaded that the victim has the possibility, chance or opportunity to escape from such taking away by the accused during or after the incident. This was observed by the Kerala High Court in the case of Dharmarajan vs. State of Kerala represented by the Public Prosecutor (2014).

Aggravated forms of kidnapping under the Bharatiya Nyaya Sanhita, 2023

The aggravated forms of kidnapping are provided under different provisions and prescribed with different punishments because those are not just cases of kidnapping, but also include immoral and unlawful purposes. The table below shows the aggravated forms of kidnapping, their essential ingredients and punishments as provided under the BNS.

Provision under the BNS	Essential ingredients	Punishment
Section 139 BNS (Section 363A of the IPC)	The accused kidnaps a minor;The accused is not a lawful guardian of such a minor; andSuch minor may be employed or used for the purposes of begging	Imprisonment, either simple or rigorous, up to ten years. Along with this, even a fine is imposed on the convict.
Section 140(1) BNS (Section 364 of the IPC)	The accused kidnaps any person, including a minor or unsound person; andSuch kidnapping was done with the intention to murder the victim or to dispose of him/her in such a manner as to be put in danger of being murdered.	Life imprisonment or rigorous imprisonment of up to ten years. Along with this, even a fine is imposed on the convict.
Section 140(2) BNS (Section 364A of the IPC)	The accused kidnaps, abduction or detains any person;This Act was done by the accused with the intention to ransom;Later, the accused threatens or causes death or hurt to the victim. It also includes reasonable apprehension of the said harm by the accused’s conduct; andThe above-said act is committed to compelling the government or any foreign or any international organisation or any other person to do or abstain from doing any act or to pay a ransom.	Death sentence or life imprisonment. Along with this, even a fine is imposed on the convict.
Section 140(3) BNS (Section 365 of the IPC)	The accused kidnaps or abduction any person; andSuch an act was committed with the intention to secretly and wrongfully confined that person	Imprisonment, either simple or rigorous, up to seven years. Along with this, even a fine is imposed on the convict.
Section 87 BNS (Section 366 of the IPC)	The accused kidnaps or abduction any woman, whether married or unmarried;Such an act is committed with the intention to-To compel her to marry any person, orTo force or seduce her to illicit IntercourseSuch women have no will for Such marriage or illicit Intercourse.	Imprisonment, either simple or rigorous, up to ten years. Along with this, even a fine is imposed on the convict.
Section 140(4) BNS (Section 366A of the IPC)	The accused induces a minor girl to come out of a place or to do any act; andSuch inducement is made with the intention to force or seduce her to illicit intercourse with another person.	Imprisonment, either simple or rigorous, up to ten years. Along with this, even a fine is imposed on the convict.
Section 141 BNS (Section 367 of the IPC)	The accused kidnaps or abducts any person; andSuch an act is committed with the intention of subjecting such a person to grievous hurt, slavery or unnatural lust.	Imprisonment, either simple or rigorous, up to ten years. Along with this, even a fine is imposed on the convict.
Section 142 BNS (Section 368 of the IPC)	The victim has been kidnapped or abducted; andThe accused, knowing this fact, conceals or confines the victim.	Punishment is the same as if he kidnapped or confined the victim.

Landmark judgements

S. Varadarajan vs. State of Madras (1964)

In this case, the house of the minor girl, Savithri, and the house of the accused, S. Varadarajan, who is the appellant in the instant case, are adjacent to each other. Savithri and Varadarajan frequently used to chat with each other. The same was observed for quite some time by her sister, Rama, who then asked the reason for such talking for which the minor girl revealed her wishes to marry him. Her father, S. Natarajan, was an Assistant Secretary to the Government of Madras in the Department of Industries and Co-operation. So, to keep his daughter, Savithri, as far from the appellant as possible, kept her in his relative’s house on 30th September 1960. The next day, on 1st October 1960, Savithri came out of the house and called the accused and asked him to meet her at a particular place. After the meeting, they both planned to marry in the register’s office and, accordingly, registered their marriage. Later on, the couple moved to various places.

It was at the Supreme Court that the appeal by Varadarajan was heard on a point of law. The crucial issue that was raised before the Court was whether the accused was guilty of his act in which the minor alleged to have been kidnapped by the accused person luckily abandoned her father’s safety and was able to realise the full meaning of what she was doing, thereby joining the accused willingly. To decide the accused’s conviction, the Supreme Court first has to resolve the issues regarding the interpretation of the phrases “keeping of the lawful guardian” and “out of the keeping”.

A critical study of the Supreme Court’s decision-making ratio in this case reveals that a person would not be guilty of an abduction offence if he only played a part that facilitated the fulfilment of the minor girl’s intention to leave the house of her guardian or the house where her guardian had kept her. The Court distinguished between “taking” a minor girl from “merely allowing her to accompany him”. The Court noted that “taking” or seducing a minor out of keeping a lawful guardian is an essential ingredient of the kidnapping offence. On Savitri’s part, there was no suggestion she left her father’s home or her relative’s house at her lover’s instance. Also, as per Justice Mudholkar, a senior graduate, who had lived in a metropolitan city, was not an unsophisticated person and was much more able to think for herself and act independently than maybe an unlettered rural person.

The Court further observed that, by complying with her wishes, Varadarajan can not be said to have taken her out of the keeping of her lawful guardian by any stretch of the imagination. After the said incident, both Varadarajan and Savitri lived as husband and wife and visited various places; there was no suggestion in Savitri’s evidence that she had been made to accompany him with threats or blandishment administration. The fact that she accompanied him all along was quite consistent with Savitri’s own desire to be his wife, in which, of course, the desire to accompany him wherever he went was implicit. 

In these conditions, the Court found nothing on which to conclude that Varadarajan had been accused of “taking away” Savitri on her father’s holding. No doubt, the part he played could be considered to have facilitated the fulfilment of the girl’s intent. That part, however, falls short of the inducement of a minor to slip out of her lawful guardian‘s custody and, thus, does not amount to “taking”. 

Consequently, the true import of this decision appears to be that the accused must be instrumental in the formation of an intent in the mind of the minor to leave the guardian in order to be punished for the offence of kidnapping.

State of Haryana vs. Raja Ram (1973)

In this case, the main accused seduced the victim, a girl of 14 years old, to come out of her parental home and leave with him. Knowing this, the father of the girl warned the accused not to enter his house and that he should never talk to the girl. Because there was no way to approach her, the accused started sending letters to the girl through the respondent, Raja Ram. One day, Raja Ram brought her to his house, and the girl left with the main accused.

From the facts, it can be understood that the respondent is not the main accused who enticed her. However, Raja Ram is the medium or means by which the design of the main accused was achieved. So, the issue before the courts is whether Raja Ram, the respondent in this case, can be convicted under Section 361 of the IPC. The Trial Court convicted him and the High Court acquitted him. The case, on appeal, came before the Supreme Court.

The three-judge Supreme Court bench clearly and in a detailed manner explained the terms “takes” and “entices” and this interpretation was still significant for the kidnapping cases. The Court, then, gave a verdict stating that the conviction by the Trial Court was correct and set aside the High Court’s decision.

Thakorlal D. Vadgama vs. State of Gujarat (1973)

The accused, in this case, would usually visit prostitutes. One day, he saw a girl of sixteen years old as a prostitute. He took her, without knowing that he was married and her husband was alive, to his house so that she could live with him. The accused was charged with Section 361 of the IPC. The matter came before the Supreme Court, where the Court held that the accused’s charge failed as the girl, allegedly to be kidnapped by the accused, was not under the custody of her husband, but was living with the prostitutes. In this case, the Court observed that the word “takes” does not require any element of force, whether actual or constructive.

Kuldeep K. Mahato vs. State of Bihar (1998)

In this case, both the accused and the victim, a child, were living in the same village. The accused had allegedly eloped the victim when he went to a market and raped her. For the elopement, the accused first compelled the victim to sit in a tempo and kept her silent using a dagger. An FIR was lodged against the accused under Sections 363, 366 and 376 of the IPC. The defence argued that the victim of her own free will came with the accused. However, the prosecution proved how the victim was threatened in tempo by presenting oral evidence. The Supreme Court upheld the conviction under Section 363 of the IPC.

Ashok Kumar Seth vs. State of Orissa (2003)

In this case, the wife left her in-laws’ house and started living in her parents’ house. Later, the husband, the accused, after entering his father-in-law’s house, took his own son out of the custody of his wife. The husband was charged with Sections 363 and 452 of the IPC. The Orissa High Court found that the husband was not prohibited specifically by any court and, thus, held that the accused prima facie is not guilty of the offence of kidnapping from lawful guardianship as he was a natural guardian to that minor child as per Hindu law. However, the cognizance of Section 452 of the IPC was maintained.

Conclusion 

Though the BNS did not define the word “kidnapping”, the offence of lawful guardianship was clearly defined and appropriately prescribed the punishment. The judiciary clarified and gave apt interpretations whenever the issue of the interpretation of many phrases in the said definition was brought before the courts because of which the ambiguity and vagueness were erased.

The word “taking” can be interpreted to include all cases of a person’s indirect inducements to affect the minor’s intent to leave the guardian’s place. Also, by providing that the “mental attitude of the minor is irrelevant in the case of taking,” recognizes that minors are unable to make an independent judgement in respect of their actions. In this way, the courts interpreted the phrases in order to protect the rights of children and guardians and punish the offenders for their criminal acts.

Frequently Asked Questions (FAQs)

Whether the common law requires the element of intention for constituting the offence of kidnapping?

Under English law, the offence of kidnapping was provided under Section 55 of the Offences against the Person Act, 1861. However, the offence, under common law, is called “child stealing” and will be held liable for misdemeanour. The essential ingredients of the offence as provided under Section 55 are:

1. The accused took an unmarried girl by unlawful means.
2. The age of such a girl shall be below sixteen years.
3. Such taking shall be out of the possession of the girl’s father and mother.
4. The father and mother of the girl did not consent to such taking.

If all the above are proven, the accused will be held guilty of a misdemeanour as per the said provision. 

Furthermore, there is no ingredient as to the intention of the accused in the above-mentioned essentials. Thus, it can be understood that this wrong can be punished even though the accused has no intention to commit such an offence. This was held in the case of R vs. Prince (1875), where a girl, who was in fact less than sixteen years of age, was taken away by the accused without the consent of her parents. The accused argued that he bona fide believed that she was eighteen years old, as informed by the girl to him and pleaded that he had no intention to commit this wrong. The Court denied his plea and held that a person shall be punished for his misdemeanour even though he/she believed, or had grounds for believing, that the girl so taken was more than sixteen years of age.

Therefore, the offence of kidnapping is such a crime that it does not require mens rea and the wrongful act itself will be punished, though the element of mens rea is one of the essential elements of any crime. This is because of the severity of this criminal offence.

Whether forcible kidnapping recognised by custom be punishable under Section 137(2) of the BNS?

As per customs in the Kandha tribe, the forcible kidnapping of a girl by a man and then marrying after obtaining complete consent from either side of families is one of the recognised forms of marriage. The accused in the case of Dutta Pradhan & Ors. vs. State of Orissa (1985) belong to this Kandha tribe; he forcibly kidnapped a married girl without her consent from her lawful guardian and, then, performed a marriage with her for which families of both bride and bridegroom agreed. The Orissa High Court observed that, if he permitted such a custom, then a serious offence of kidnapping is said to be legalised and, thus, upheld the conviction.

Can any person who has custody of the child be a lawful guardian for the purpose of Section 137(1)(b) of the BNS?

As per the Explanation given under Section 137(1)(b) of the BNS, a person, who has the care and custody of a minor person, is said to be a lawful guardian of that child provided he must obtain such custody by a lawful entrustment which is sanctioned by law. It is not necessary that the person have a duty or obligation to take care of that child but, if such custody was obtained by an unlawful or illegal means, then such person cannot fall under the category of lawful guardian for the purpose of Section 137(1)(b) of the BNS.

What is the difference between offences under Sections 87 and 84 of the BNS?

Section 87 of the BNS deals with the offence of kidnapping a woman to compel her marriage, illicit intercourse, etc; whereas, Section 84 of the BNS deals with the offence of taking or enticing a married woman. Though the ingredients under Sections 87 and 84 seem to be similar, both are different offences and Section 84 has a few more ingredients which are absent in Section 87. The additional ingredients, which are not found in Section 87, are as under:

1. The woman, who was taken or enticed by the accused, was a married woman; and
2. The accused have knowledge about this fact while committing the offence of kidnapping.

On conviction under Section 87 of the BNS, imprisonment, whether simple or rigorous, for a period up to ten years, along with a penalty, will be imposed on the convict. While, for the offence under Section 84 of the BNS, the punishment is either imprisonment of either description for a period up to two years or a fine or both imprisonment and fine.

References

• https://www.jstor.org/stable/pdf/43949856.pdf?noAccessModalRRLoggedIn=true&refreqid=excelsior%3Adcac5669638abe6c0a79d11ef1475d51&loggedin=true
• http://lawtimesjournal.in/kidnapping-and-its-punishment/#:~:text=This%20word%20merely%20means%2C%20%E2%80%9Cto,%E2%80%9Cto%20get%20into%20possession%E2%80%9D.&text=The%20taking%20or%20enticing%20must,or%20person%20of%20unsound%20mind.
• https://crlreview.in/kidnapping-abduction-part-1-indian-penal-code/

• https://lawctopus.com/clatalogue/all-you-need-to-know-about-kidnapping-and-abduction/
• https://theprint.in/india/more-than-47000-children-missing-in-india-71-are-girls-shows-ncrb-data/1880048/
• https://repository.nls.ac.in/cgi/viewcontent.cgi?article=1373&context=nlsir
• “The Indian Penal Code” authored by Ratanlal and Dhirajlal.
• “Indian Penal Code” authored by R.N. Saxena.

---

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.