About this topic
These notes cover kidnapping and abduction under the B.N.S.: the definition of abduction (Section 138), the two kinds of kidnapping (Section 137), the meaning of consent (Section 28), lawful guardianship, punishment (Sections 137(2), 87 and 140), two Supreme Court cases, and the differences between the two offences.
The three problems below test the rules in these notes. They are solved in the section "The three problems solved".
Zoya is 15 and is staying with her aunt in Pune for her board exams. For weeks, a 19-year-old boy she met in an online game keeps messaging her, praising her and urging her to come to his town. One afternoon she takes a bus and goes to him. He never threatened her and never lied to her.
Prince, a 32-year-old engineer, is pushed into a van at knifepoint outside his office, driven around the city for an hour and dropped on a highway. No money is demanded and he is not hurt.
Aadil is 45. He is a person of unsound mind living in a care home run by a trust in Nagpur. A neighbour who wants his land walks him out of the gate one evening, promising him a drive to the river he loves, and keeps that promise. The care home never agreed.
For each problem the questions are: is it kidnapping, is it abduction, and under which provision can the accused actually be punished?
The central idea: will and shield
One idea runs through the whole topic.
- Will: every person has a will, the freedom to decide where to go.
- Shield of a guardian: a child, or a person of unsound mind, lives under the protective shield of a guardian.
- Shield of Indian law: everyone in India lives under the shield of Indian law, which grows far weaker once a person is carried abroad.
Abduction breaks a will. Kidnapping breaks a shield.
Abduction: Section 138 B.N.S.
Abduction is the simpler offence, because it concerns only the will of the person.
Definition
"Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person."
Two modes: a push or a pretence
- The push: force that compels a person to go.
- The pretence: a deceitful means, a lie or a trick, that induces a person to move.
Either way, the person must be made to go from a place.
Abduction = force that compels or deceitful means that induce + the person is made to go from any place.
Any person, any place
The section uses the words "any person". Abduction therefore has no age limit and needs no guardian. An old man or a small child can be abducted, from any place at all.
A woman calls a retired teacher aged 70, pretending to be from his bank. She says his pension will stop unless he comes with her to the branch at once. He gets into her car and she drives him somewhere else. No one touched him, but a lie moved him. This is abduction by deceitful means.
Two consequences of the definition
- Free movement is not abduction. If a person goes with someone freely, knowing all the facts, the will is not broken, so there is no abduction.
- Abduction can be repeated. A person is abducted not only at the first step, but every time he is forced or deceived into moving on.
Force in the form of a threat
Gurcharan Singh v. State of Haryana (1972, Supreme Court): One evening in 1967, a village girl below 16 was lured by two women to a house with the promise of new clothes. There a man threatened her with a knife and took her to the appellant. The appellant threatened her with a pistol, made her go with him to a tube-well room in his fields, and raped her. He was convicted of abduction for illicit intercourse and of rape, and the High Court upheld the conviction. Before the Supreme Court he argued that any kidnapping or abduction was complete when the women first lured her away, so it could not be charged to him.
Held: The argument was rejected. There was no question of kidnapping from lawful guardianship here. The gravamen (the core of the charge) was his own act: by threatening her with a pistol he made her go with him to his fields. This fits the definition of abduction exactly, because force compelled her to go. The appeal was dismissed.
Principle: (1) a pistol threat is force; (2) a minor can be abducted; (3) a fresh abduction can take place even after the victim has already been taken from home.
The case was decided under the IPC. Today the definition is Section 138 B.N.S., and the offence charged corresponds to Section 87 B.N.S.
Section 87 B.N.S.: kidnapping or abducting a woman to compel marriage or illicit intercourse
"Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Sanhita or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid."
Broken into its parts:
- First limb: kidnapping or abducting any woman with intent, or knowledge of likelihood, that she will be compelled to marry any person against her will, or forced or seduced to illicit intercourse.
- Second limb: inducing any woman to go from any place by criminal intimidation, abuse of authority or any other method of compulsion, with intent, or knowledge of likelihood, that she will be forced or seduced to illicit intercourse with another person.
- Punishment: imprisonment of either description up to 10 years, and fine.
Under Section 2(35) B.N.S., a "woman" means a female of any age. Girls are therefore also protected by Section 87.
Kidnapping: Section 137 B.N.S.
Kidnapping protects the shields: the shield of Indian law and the shield of a guardian.
Two kinds of kidnapping
Section 137(1):
"Kidnapping is of two kinds: kidnapping from India, and kidnapping from lawful guardianship."
- Kidnapping from India: Section 137(1)(a), the shield of the border.
- Kidnapping from lawful guardianship: Section 137(1)(b), the shield of custody.
Meaning of "child": Section 2(3)
Because one kind of kidnapping depends on age, the definition of child is needed:
"'child' means any person below the age of eighteen years"
A child is any person below 18 years. The age is the same for boys and girls.
Kidnapping from India: Section 137(1)(a)
"whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorised to consent on behalf of that person, is said to kidnap that person from India"
- Convey means to carry or transport.
- The clause says "any person", so an adult can be kidnapped from India.
- An adult of sound mind consents for himself.
- For a child, the consent must come from someone legally authorised to consent on the child's behalf, such as a parent.
When consent is not consent: Section 28
Not every "yes" is a consent in law. Section 28 opens:
"A consent is not such a consent as is intended by any section of this Sanhita"
- Clause (a): "if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or"
- Clause (b): "if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or"
- Clause (c): "unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age."
In short, consent is not valid if given under fear of injury or misconception of fact (known to the doer), by a person who cannot understand its nature and consequence because of unsoundness of mind or intoxication, or by a person under 12 years of age.
An agent flies a welder abroad, promising him a factory job that never existed. His "yes" rested on a misconception of fact created by the agent, so in law he never consented. He has been kidnapped from India, and since a lie made him go, he has also been abducted.
Kidnapping from lawful guardianship: Section 137(1)(b)
"whoever takes or entices any child or any person of unsound mind, out of the keeping of the lawful guardian of such child or person of unsound mind, without the consent of such guardian, is said to kidnap such child or person from lawful guardianship."
Persons of unsound mind are covered at any age.
Four essentials
The prosecution must prove four things:
- The right victim: a child (below 18) or a person of unsound mind.
- An act of taking or enticing.
- Removal out of the keeping of a lawful guardian.
- No consent from that guardian.
Taking and enticing
- Taking is leading. It does not matter whether force, a trick or kind words are used.
- Enticing is luring. It is complete even if the child then travels alone.
Taking: a man holds a 7-year-old's hand and walks him out of a school gate. He has taken the child, whether he used force, a trick or kind words.
Enticing: a man promises a 12-year-old a new phone if he comes to the city. He has enticed the boy, even if the boy travels alone.
In kidnapping from lawful guardianship, the child's own agreement is irrelevant. Only the guardian's consent counts.
"Keeping" of the lawful guardian
Keeping does not require the guardian to be physically present. It works like an umbrella that the guardian holds over the child, and the umbrella travels with the child to school or to a friend's house. Kidnapping pulls the child out from under this umbrella.
Who is a lawful guardian: the Explanation
"The words 'lawful guardian' in this clause include any person lawfully entrusted with the care or custody of such child or other person."
A lawful guardian need not be a parent.
A school bus attendant on the morning route, or a grandmother caring for the child during the holidays, can be the lawful guardian at that time.
The 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."
The Exception protects a person who in good faith believes himself to be:
- the father of an illegitimate child, or
- entitled to the lawful custody of the child,
but the protection is lost if the act is committed for an immoral or unlawful purpose.
A father takes his son for a weekend, honestly believing that a custody order allows it. He is protected by the Exception, unless his purpose is immoral or unlawful.
When the minor leaves on her own
If a minor walks out on her own and the accused only goes along, the test is: who wrote the plan?
S. Varadarajan v. State of Madras (1964, Supreme Court): Savitri, a college student in Madras, was about six weeks short of 18. She told her elder sister that she wanted to marry the appellant, their neighbour. Her father left her at a relative's house to keep them apart. The next morning she walked out, phoned the appellant and asked him to meet her on a certain road. He arrived in his car and she got in on her own. They registered an agreement to marry and travelled together until the police found them. He was convicted of kidnapping from lawful guardianship, and the High Court upheld the conviction.
Arguments: (1) she had abandoned her father's guardianship; (2) in any case, he had never taken her. The Court decided the case on the second point.
Held: She was still in her father's lawful keeping, even at the relative's house. But every essential step was hers: she made the call, chose the place and got into the car unasked. Taking a minor is different from allowing a minor to accompany you. Where a minor who understands the full meaning of her act leaves her guardian and joins the accused, he does not take her. Something more is needed, such as some inducement, or an active part in forming her intention to leave, even at an earlier stage. Merely helping her carry out her own decision is not taking, and the law put no duty on him to send her back. The conviction was set aside.
Principle: The minor's consent never excuses taking or enticing, but there must be taking or enticing in the first place.
The case arose under the IPC. Its rule applies today to Section 137(1)(b) B.N.S.
Taking v. allowing to accompany: if the accused induced the minor or played an active part in forming her intention to leave (even at an earlier stage), it is taking or enticing. If the minor, understanding the full meaning of her act, made every essential decision herself and the accused merely helped her carry it out, there is no taking.
Punishment
Punishment is where the two offences part ways.
Kidnapping: Section 137(2)
"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."
- "Either description" means simple or rigorous imprisonment.
- Kidnapping is punishable by itself: up to 7 years and fine.
Abduction: punished only through its purpose
No Section punishes abduction alone. The law treats abduction as a means and punishes it according to the purpose it serves. The main purposes are listed in Section 140, titled "Kidnapping or abducting in order to murder or for ransom, etc." Each sub-section covers kidnapping and abduction alike.
Section 140(1): in order to murder
"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."
If the victim is actually killed, Section 103 also applies, which punishes murder with death or imprisonment for life, and fine.
Section 140(2): for ransom
"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."
- Ransom means a payment demanded for releasing a captive.
- This is the gravest form, because a human life becomes a lever against a family, or even a Government.
Section 140(3): to confine secretly and wrongfully
"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."
Section 140(4): grievous hurt, slavery or unnatural lust
"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."
| Provision | Purpose of kidnapping or abduction | Punishment |
|---|---|---|
| Section 140(1) | So that the person may be murdered, or put in danger of being murdered | Imprisonment for life or rigorous imprisonment up to 10 years, and fine |
| Section 140(2) | Detention with threat of death or hurt (or causing hurt or death) to compel the Government, a foreign State, an international inter-governmental organisation or any other person to do or abstain from an act, or to pay a ransom | Death or imprisonment for life, and fine |
| Section 140(3) | Intent to cause the person to be secretly and wrongfully confined | Imprisonment of either description up to 7 years, and fine |
| Section 140(4) | So that the person may be subjected (or put in danger of being subjected) to grievous hurt, slavery or unnatural lust | Imprisonment of either description up to 10 years, and fine |
| Section 87 | A woman: to compel marriage against her will, or force or seduce her to illicit intercourse | Imprisonment of either description up to 10 years, and fine |
One act can be both offences
A man snatches a 6-year-old girl from her grandmother's courtyard and drives away. He took a child out of a lawful guardian's keeping, which is kidnapping; and he used force, which is abduction.
Kidnapping and abduction compared
| Point | Abduction (Section 138) | Kidnapping (Section 137) |
|---|---|---|
| What it breaks | A will | A shield (of the border, or of a guardian) |
| Victim | Any person, of any age | From India: any person. From lawful guardianship: a child below 18, or a person of unsound mind of any age |
| Place | From any place | Beyond the limits of India, or out of the keeping of a lawful guardian |
| Means | Only force that compels or deceitful means that induce | From India: conveying. From lawful guardianship: taking or enticing, by any means (force, trick or kind words) |
| Role of consent | If the person goes freely, knowing all the facts, there is no abduction | From India: a true consent of the person (or of someone legally authorised) is a defence. From lawful guardianship: only the guardian's consent counts; the victim's agreement is irrelevant |
| Punishment | Not punishable alone; punished only through its purpose (Sections 87, 140) | Punishable by itself under Section 137(2): up to 7 years and fine |
The three problems solved
Problem 1: Zoya
- Zoya was 15, so she was a child, and her aunt was her lawful guardian.
- Unlike Savitri in S. Varadarajan, she did not write the plan. The boy's weeks of persuasion formed her decision, so he enticed her, and her willingness does not matter.
- Result: kidnapping from lawful guardianship, punishable under Section 137(2).
- With no force and no lie, it is not abduction.
Problem 2: Prince
- Prince was moved by force, so he was abducted.
- No special purpose was proved, so the abduction itself carries no punishment.
- The accused is still not free. The knife and the van are offences of their own: criminal intimidation under Section 351 and wrongful confinement under Section 127.
Problem 3: Aadil
- Aadil is an adult, but as a person of unsound mind he still lives under the custody shield.
- The care home was lawfully entrusted with his care, so it was his lawful guardian.
- The neighbour enticed him out of its keeping without its consent. That is kidnapping from lawful guardianship, even at 45.
- Since the promise was real, there was no pretence, so there is no abduction.
Quick revision
- Abduction breaks a will; kidnapping breaks a shield.
- Abduction (Section 138) is committed through a push (force that compels) or a pretence (deceitful means that induce).
- Abduction reaches any person, in any place.
- Abduction is punished only through its purpose (Sections 87 and 140), never by itself.
- Kidnapping (Section 137) is of two kinds: from India and from lawful guardianship; it is punishable by itself under Section 137(2).
- At the border (kidnapping from India), a true consent is a defence.
- Under a guardian (kidnapping from lawful guardianship), only the guardian's consent counts, whatever the means used.
