Laws on kidnapping and Abduction

Kidnapping means stealing of a person from one place to another against his/her will under circumstances in which the person is not allowed to move freely. The capture usually involves criminal acts such as holding the person for sadistic abuse, ransom, reward, sexual or rape. The crime of unlawfully carrying away the person by fraud or force and detaining the person against his/her will is difficult to define with precision because it differs from jurisdiction to jurisdiction.

Abduction is the offence where a person forcefully or deceitfully compels a person to go from any place. The victim could be a minor or major. Abduction is an offence when committed to help other crimes. Under the now-repealed Section 361 of the Indian Penal Code, 1860, kidnapping from lawful guardianship applied where a minor was under sixteen years of age if a male, or under eighteen years of age if a female. Under the current law, Section 137 of the Bharatiya Nyaya Sanhita (BNS), 2023 (formerly Section 361 IPC), the age has been standardised: whoever takes any child under eighteen years of age (irrespective of gender), or any person of unsound mind, out of the keeping of the lawful guardian of such child or person, without the consent of such guardian, is said to kidnap such child or person from lawful guardianship.

The punishment for kidnapping is now found in Section 137(2) of the BNS, 2023 (formerly Section 363 IPC, 1860): whoever kidnaps any person from India or from lawful guardianship shall be punished with imprisonment that can extend up to seven years, and shall also be liable to fine. Where the kidnapping is done for the purposes of begging it is dealt with separately and attracts a higher punishment of imprisonment which may extend to ten years, along with a fine.

Kidnapping for ransom is now dealt with under Section 140(2) of the BNS, 2023 (formerly Section 364A IPC, 1860): 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 organization 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.

The Delhi High Court has held that in order to constitute an offence of kidnapping (then punishable under Section 363 of the Indian Penal Code, now Section 137 of the BNS, 2023), “there has to be taking or enticing of a minor from the lawful guardianship of her parents/guardian. If the minor, of her own, abandons the guardianship of her parents and joins a boy, without any role having been played by the boy in her abandoning the guardianship of her parents and without her having been subjected to any kind of pressure, inducement, etc. and without any offer or promise from the accused, no offence will be made out when the girl is aged more than 16 years and is mature enough to understand what she is doing.” It should be noted that under the present law the relevant statutory age is eighteen years for every child, irrespective of gender, so this observation about a girl “aged more than 16 years” must now be read in the light of Section 137 of the BNS, 2023.