Kidnapping under Bhartiya Nyaya Sanhita (BNS) 2023 | Section 137

1. Introduction and Statutory Framework

The Bhartiya Nyaya Sanhita (BNS), 2023, has replaced the Indian Penal Code (IPC), 1860. The substantive law regarding kidnapping, previously found under Sections 359–361 of the IPC, is now consolidated and defined under Section 137 of the BNS.

• Primary Objective: To protect the rights of lawful guardians and ensure the safety of minors and persons of unsound mind.

• Definition: Kidnapping involves the unauthorized removal of a person either from the territorial jurisdiction of India or from the custody of a lawful guardian.

2. Classification of Kidnapping

Section 137 recognizes two distinct categories of the offense:

A. Kidnapping from India [Section 137(1)(a)]

This occurs when a person is conveyed beyond the borders of India without their consent (or the consent of someone authorized to act on their behalf).

• Key Elements:

  1. Conveyance: The act of moving or sending a person (directly or indirectly).

  2. Territorial Breach: Moving the person beyond the limits of India.

  3. Lack of Consent: The act must be done without valid legal consent.

• Note: The age of the victim is irrelevant here; the focus is on the lack of consent and the crossing of national boundaries.

B. Kidnapping from Lawful Guardianship [Section 137(1)(b)]

This involves taking or enticing a minor (Male < 16 years; Female < 18 years) or a person of unsound mind out of the keeping of their lawful guardian without consent.

• Key Elements:

1. Taking or Enticement: Physical removal or mental inducement.

2. Specific Victim: A minor or a person of unsound mind.

3. Breach of Custody: Removal from the "keeping" of a lawful guardian.

4. Non-Consent: Absence of the guardian's permission.

3. Essential Legal Principles & Judicial Interpretations

I. The Doctrine of Strict Liability

Kidnapping from lawful guardianship is considered an offense of strict liability. The accused's intent (mens rea) regarding the age of the victim is secondary to the act itself.

Case Reference: R v. Prince (1875) – Established that a mistaken but honest belief that a minor was of age does not serve as a defense.

II. Consent of the Minor vs. Guardian

In cases involving minors, the minor's consent is legally a nullity. The only consent that matters is that of the lawful guardian.

Case Reference: State of Haryana v. Raja Ram (1973) – The Supreme Court clarified that even if the minor accompanies the accused voluntarily, the offense is complete because the guardian's rights were violated.

III. "Taking" vs. "Enticing"

• Taking: Requires active participation by the accused. However, if a minor leaves the guardian entirely on their own volition and the accused merely facilitates them, it may not amount to "taking."

  • S. Varadarajan v. State of Madras (1965)

• Enticing: Involves the use of allurement or persuasion. This does not need to be immediate; it can be a "continuous course of conduct."

• Thakorlal D. Vadgama v. State of Gujarat (1973)

• Pradeep Kumar v. State of Bihar (2007)

Statutory Exception

Under the Explanation to Section 137, the provision does not apply to:

1. A person who believes in good faith they are the father of an illegitimate child.

2. A person who is lawfully entitled to the custody of the person.

• Proviso: This exception is void if the act is committed for an immoral or unlawful purpose.

5. Penal Provisions [Section 137(2)]

The punishment for kidnapping remains stringent to act as a deterrent:

• Maximum Sentence: Up to 7 years of imprisonment.

• Additional Penalty: Liability to a fine.

In conclusion, Section 137 of the Bhartiya Nyaya Sanhita, 2023, represents a critical statutory continuity from the earlier IPC framework, prioritizing the protection of minors, persons of unsound mind, and the rights of their lawful guardians. By classifying kidnapping as an offense of strict liability, the law ensures that the accused cannot plead a "mistake of age" or the "consent of the minor" as a valid defense, as established in the landmark R v. Prince and State of Haryana v. Raja Ram cases. Whether it involves the "conveying" of a person beyond India's borders or the "taking or enticing" of a minor from legal custody, the BNS maintains a stringent deterrent with a punishment of up to seven years. Ultimately, the provision balances the necessity of active participation by the accused (as seen in S. Varadarajan) with the overarching need to safeguard the physical and legal security of those who cannot legally consent for themselves.