Kidnapping and Abduction under the Bharatiya Nyaya Sanhita, 2023: Key Provisions and Legal Distinctions

The concepts of kidnapping and abduction have long been part of the criminal law framework in India, previously governed by Sections 359 to 369 of the Indian Penal Code, 1860 (IPC). With the enactment of the Bharatiya Nyaya Sanhita, 2023 (BNS), effective from 1 July 2024, these provisions have undergone consolidation and revision.

This article examines the relevant provisions of kidnapping and abduction under the BNS, outlines the essential elements of each offence, and highlights their differences.

Kidnapping: Provisions under the Bharatiya Nyaya Sanhita, 2023

Classification of Kidnapping under BNS (Section 137)

Kidnapping is classified into two types under the Bharatiya Nyaya Sanhita, 2023:

• Kidnapping from India
• Kidnapping from lawful guardianship

These provisions are similar to those under Sections 360 and 361 of the IPC, respectively.

Section 137(1) (a): Kidnapping from India

This provision criminalises taking a person beyond the territory of India without their consent or the consent of a legally competent person. This is particularly relevant in cases involving international human trafficking or forced migration.

Essential Ingredients:

• Removal of a person beyond Indian territory
• Absence of lawful consent

Section 137(1) (b): Kidnapping from Lawful Guardianship

This provision penalises taking or enticing a minor (under 18 years for males, under 18 years for females) or a person of unsound mind away from their lawful guardian without permission.

Key Elements:

• The victim is a minor or of unsound mind
• Act of taking or enticing
• No consent from lawful guardian

Explanation and Exception

The section includes an explanation clarifying that "lawful guardian" includes any person lawfully entrusted with the care or custody of the minor/person of unsound mind.

An important exception is also retained from the IPC: a person who believes in good faith that they are the father of an illegitimate child and acts without an immoral or unlawful purpose will not be considered guilty.

Abduction: Meaning and Provision under the Bharatiya Nyaya Sanhita, 2023

Abduction (Section 138)

Abduction under Section 138 is defined as compelling or inducing a person, by force or deceitful means, to go from one place to another.

Essential Ingredients:

• Use of force or deceitful means
• Inducement to move from one place to another

Key Differences between Kidnapping and Abduction

Punishment for Kidnapping under Section 137(2), BNS

If someone kidnaps a person, either by taking them out of India without consent or by taking a child or a person of unsound mind away from their lawful guardian, they can be:

• Sent to jail for up to seven years, and
• Also made to pay a fine.

This law applies to both types of kidnapping and is meant to protect individuals, especially children and vulnerable persons, from being taken away unlawfully.

Aggravated forms of Kidnapping or Abduction

The various forms of kidnapping and abduction offences are as follows:

Kidnapping or Maiming a Child for Purposes of Begging (Section 139)

Whoever kidnaps or takes custody of a child to use them for begging faces rigorous imprisonment of at least 10 years, extendable to life, along with a fine. If a child is maimed for begging, the punishment is a minimum of 20 years, which may extend to life imprisonment for the remainder of the offender’s natural life, plus a fine. If someone who is not the child’s guardian uses them for begging, it is presumed that they obtained custody illegally for that purpose.

The term “begging” includes asking for alms in public or private spaces through singing, performing, exhibiting injuries, or using the child to gain sympathy.

Kidnapping or Abducting in Order to Murder or For Ransom, Etc (Section 140)

Whoever kidnaps or abducts someone to have them murdered, or put them in a situation where they could be killed, can be punished with life imprisonment or rigorous imprisonment for up to 10 years, along with a fine. This provision deals with serious crimes where kidnapping is linked to the risk or intent of murder.

Anyone who kidnaps or abducts a person and threatens to harm or kill them to demand ransom or force the government, an organisation, or any individual to act or refrain from acting can face the death penalty or life imprisonment, plus a fine.

If someone kidnaps with the intent to wrongfully and secretly confine the victim, the punishment may be up to 7 years of imprisonment and a fine. If the kidnapping is done to subject the person to grievous hurt, slavery, or sexual abuse, or with knowledge that they may face such harm, the offender may be punished with up to 10 years’ imprisonment

Wrongfully Concealing or Confined a Kidnapped or Abducted Person (Section 141)

Whoever brings a girl under 21 years or a boy under 18 years into India from another country, with the intention—or knowing it is likely—that they will be forced or persuaded into illegal sexual activity, can be punished with imprisonment of up to 10 years and a fine.

Important Case Laws

1) Manoj Pratap Singh v. State of Rajasthan (2022)

The Supreme Court upheld the conviction and death sentence of the appellant for the kidnapping, rape, and murder of a seven-and-a-half-year-old girl with mental and physical disabilities. The Court described the offence as one of exceptional brutality, noting the misuse of the victim’s trust, the use of a stolen motorcycle for abduction, and the fatal assault involving the smashing of her head.

Citing the appellant’s prior criminal history—including theft, attempt to murder, and a subsequent jailhouse murder—the Court found no possibility of reformation or rehabilitation. Given the severity of the crime and absence of mitigating factors, the death sentence was affirmed as the only appropriate punishment.

2) Vinod Chaturvedi v. State of Madhya Pradesh (1984)

The appellant was accused of abducting the deceased, Brindaban. However, the investigation revealed that Brindaban willingly accompanied the accused, especially Vinod, after being persuaded. He even went inside his house, changed clothes, and came out properly dressed to go with them to village of Ramapura. This voluntary conduct indicated that there was no abduction, as there was no use of force or compulsion by the accused.

Conclusion

In an age where crimes against personal liberty are becoming more sophisticated, ranging from cross-border trafficking to cyber-enabled luring, the codification of kidnapping and abduction under the Bharatiya Nyaya Sanhita is both timely and necessary. While the core legal principles remain rooted in precedent, the BNS introduces a more streamlined and accessible structure that aids enforcement and legal clarity.

By distinctly addressing various forms of wrongful confinement and coercive removal, the BNS not only upholds individual autonomy but also strengthens deterrence through enhanced penalties in aggravated cases. As India’s criminal justice system evolves, such clarity in defining and penalising offences like kidnapping and abduction is critical to ensuring both justice and administrative efficiency.

References

[1] Indian Penal Code, 1860

[2] Bharatiya Nyaya Sanhita, 2023

[3] Manoj Pratap Singh v. State of Rajasthan, Arising out of SLP (Crl.) No(s). 7899-7900 of 2015

[4] Vinod Chaturvedi v. State of Madhya Pradesh, 1984 SCR (3) 93

[5] Universal's Guide to Judicial Service Examination, 19th Edition (2022)