Sections 359-369 IPC vs Sections 137-142 BNS — Kidnapping and Abduction

In India, the kidnapping and abduction offences in Sections 359 to 369 of the Indian Penal Code, 1860 (IPC) were replaced on 1 July 2024 by Sections 137 to 142, 87, 96 and 97 of the Bharatiya Nyaya Sanhita, 2023 (BNS). Most wording is carried over; the key changes are a single age of eighteen for "child" and heavier punishment for begging rackets.

At a glance

RI = rigorous imprisonment. The CrPC First Schedule gave the same trial court for each IPC counterpart, and listed every aggravated form as cognizable and non-bailable.

What changed

• Expanded — Section 137(1) (IPC 359-361): the three definitions are merged into clauses (a) and (b). In clause (b), "any minor under sixteen years of age if a male, or under eighteen years of age if a female" becomes "any child" — "any person below the age of eighteen years" (Section 2(3) BNS) — so boys aged sixteen and seventeen are now protected. The Explanation and Exception are carried over, "in this section" becoming "in this clause".
• Minor edit — Section 137(2) (IPC 363): same punishment; the comma after "guardianship" is dropped.
• Identical — Section 138 (IPC 362).
• Modified — Section 139 (IPC 363A): "minor" becomes "child" and the separate definition of "minor" is dropped. Sub-section (1): "imprisonment of either description for a term which may extend to ten years" becomes "rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life". Sub-section (2): "imprisonment for life" becomes not less than twenty years, extending to "imprisonment for the remainder of that person's natural life". Sub-sections (3) and (4) are carried over.
• Identical — Section 140(1) to (4) (IPC 364, 364A, 365, 367): four IPC sections become four sub-sections, with the same words, punishments and Illustrations.
• Minor edit — Section 87 (IPC 366): "criminal intimidation as defined in this Code" becomes "as defined in this Sanhita".
• Expanded — Section 96 (IPC 366A): "any minor girl under the age of eighteen years" becomes "any child", so procuration of a boy is now covered.
• Expanded — Section 141 (IPC 366B): "or any boy under the age of eighteen years" is added after "any girl under the age of twenty-one years". The words "or from the State of Jammu and Kashmir", printed in the India Code IPC text, are absent.
• Identical — Section 142 (IPC 368) and Section 97 (IPC 369).
• Modified (procedure) — Section 101 BNSS (CrPC 98): an abducted female child is restored to "her parent, guardian or other person having the lawful charge"; the CrPC text also named "husband" and read "female child under the age of eighteen years".

Statutory text (relevant extract)

Extract, Section 361 IPC (repealed from 1 July 2024):

Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

Extract, Section 137 BNS, sub-section (1)(b) and sub-section (2):

(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.

(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.

How it works — the ingredients

Kidnapping from lawful guardianship (Section 137(1)(b)) needs four things:

1. The victim is a child (below eighteen) or a person of unsound mind.
2. The accused "takes or entices" the victim.
3. "Out of the keeping of the lawful guardian" — including anyone lawfully entrusted with care or custody (Explanation).
4. Without the guardian's consent; the victim's own consent is not an element.

The Exception covers a good-faith putative father or custodian, unless the act is for an immoral or unlawful purpose.

Kidnapping from India (Section 137(1)(a)) is conveying any person beyond the limits of India without the consent of that person or of someone legally authorised to consent for them. Age is irrelevant.

Abduction (Section 138) — compelling by force, or inducing by deceitful means, any person to go from any place — is a definition, not a punishable offence by itself. It is punished when joined to a purpose in Sections 87, 97, 140 or 142.

The aggravated forms turn on purpose: to murder (140(1)); ransom or coercion of a government or other person (140(2)); secret confinement (140(3)); grievous hurt, slavery or unnatural lust (140(4)); compelled marriage or illicit intercourse of a woman (87); or stealing from a child under ten (97). Illustration (b) to Section 140(1): A forcibly carries or entices B away from his home so that B may be murdered.

Kidnapping for ransom (Section 140(2)) needs (i) kidnapping, abduction or detention after it; and either (ii) a threat to cause death or hurt, or conduct giving rise to a reasonable apprehension of it, or (iii) causing hurt or death — to compel the Government, a foreign State, an international inter-governmental organisation or any other person to act, abstain or pay a ransom (see Shaik Ahmed below).

Begging (Section 139): sub-section (3) presumes, unless the contrary is proved, that a person who is not the lawful guardian and who uses a child for begging kidnapped or obtained custody of the child for that purpose. Sub-section (4) defines "begging", including using a child as an exhibit to solicit alms.

Concealment (Section 142): knowingly concealing or confining a kidnapped or abducted person is punished as if the concealer had done the kidnapping with the same intention.

Neighbouring provisions: trafficking, including "by abduction", is Section 143 BNS (formerly Section 370 IPC); kidnapping is a "continuing unlawful activity" within organised crime under Section 111(1) BNS.

What this means in practice

For the complainant or the family

• Every form is cognizable: police may arrest without a warrant.
• Under Section 201(2) BNSS (formerly Section 181(2) CrPC), the case may be tried where the person was kidnapped or abducted, or conveyed, concealed or detained.
• On a complaint on oath of abduction or unlawful detention of a woman or female child, Section 101 BNSS lets a District, Sub-divisional or first-class Magistrate order immediate restoration.
• None of these offences is listed in either table of Section 359 BNSS, so they cannot be compounded.

For the investigating officer

• Age is one question: is the victim below eighteen (Section 2(3) BNS)?
• For Section 140(2), gather evidence of the threat, of conduct raising a reasonable apprehension, or of actual hurt or death — not only the ransom call.
• For a child found begging, record who the lawful guardian is; the Section 139(3) presumption applies only to someone who is not.

For the accused and defence advocate

• Section 479(1) BNSS (release after half the maximum, or one-third for a first-time offender) excludes offences carrying death or life imprisonment — on a reading, Sections 139 and 140(1) and (2).
• Where a minor left home voluntarily, the question under Section 137(1)(b) is whether the accused took or enticed her, including by earlier inducement.

Judgments that still matter

S. Varadarajan v. State of Madras, [1965] 1 S.C.R. 243 (1964 INSC 185) — 9 September 1964. K. Subba Rao, M. Hidayatullah and J. R. Mudholkar JJ. set aside a conviction under Section 363 IPC where a college student on the verge of majority had telephoned the accused and gone with him of her own accord. The Court held that "there is a distinction between "taking" and allowing a minor to accompany a person". Where such a minor voluntarily joins the accused, something more must be shown: an inducement, active participation in forming her intention, or earlier solicitation. The report shows no paragraph numbers. Section 137(1)(b) BNS repeats "takes or entices".

Thakorlal D. Vadgama v. State of Gujarat, [1974] 1 S.C.R. 178 (1973 INSC 111) — 2 May 1973. K. K. Mathew and I. D. Dua JJ. dismissed an appeal against conviction under Section 366 IPC. The Court held: "The word "takes" does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive." If the accused had "laid a foundation by inducement, allurement or threat" that influenced the minor to leave, he could not plead that she came to him voluntarily. The report shows no paragraph numbers.

Vikram Singh @ Vicky & Anr. v. Union of India & Ors., [2015] 10 S.C.R. 816 (2015 INSC 591) — 21 August 2015. T. S. Thakur, R. K. Agrawal and Adarsh Kumar Goel JJ. rejected a challenge to Section 364A IPC, holding that death or imprisonment for life was not so disproportionate to the offence as to be unconstitutional, with death reserved for the rarest of rare cases (para 50); it declined to strike the provision down on hypothetical situations (para 51). Section 140(2) BNS carries the same words and punishments.

Anversinh @ Kiransinh Fatesinh Zala v. State of Gujarat, [2021] 1 S.C.R. 249 (2021 INSC 16) — 12 January 2021. N. V. Ramana CJI, S. Abdul Nazeer and Surya Kant JJ. upheld convictions under Sections 363 and 366 IPC for taking a sixteen-year-old girl. Enticement "need not be direct or immediate in time and can also be through subtle actions like winning over the affection of a minor girl" (para 12). The "consent of the minor is immaterial for purposes of Section 361 of IPC" (para 15). Varadarajan applies only where the minor had knowledge and capacity, left voluntarily and was not induced (para 17). The Court reduced the sentence to the period already undergone (paras 27-28).

Shaik Ahmed v. State of Telangana, [2021] 6 S.C.R. 462 (2021 INSC 308) — 28 June 2021. Ashok Bhushan and R. Subhash Reddy JJ. set out the ingredients of Section 364A IPC (para 33). After the kidnapping, abduction or detention, either the threat/apprehension condition or the hurt/death condition must be proved, "failing which conviction under Section 364A cannot be sustained" (para 34). As neither the victim nor his father spoke of any threat, it substituted a conviction under Section 363 with seven years' imprisonment (paras 43-44). The words construed are repeated in Section 140(2) BNS.

Which law applies to your case

Section 358(2) BNS keeps alive any penalty or punishment incurred under the IPC and lets proceedings be instituted, continued or enforced "as if that Code had not been repealed". On a reading of that provision, a kidnapping or abduction committed before 1 July 2024 is charged under Sections 359 to 369 IPC. Cases pending on that date continue under the CrPC (Section 531(2)(a) BNSS). Article 20(1) of the Constitution bars conviction except for violation of a law in force at the time, and a penalty greater than that law allowed. On a reading of that Article, neither the Section 139 minimum terms nor the widened age in Section 137(1)(b) reaches conduct before 1 July 2024. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNS equivalent of Section 363 IPC? Section 137(2) of the Bharatiya Nyaya Sanhita, 2023 replaces Section 363 IPC, with the same punishment: imprisonment of either description up to seven years and fine. The definitions formerly in Sections 359 to 361 IPC are now in Section 137(1).

Has the age for kidnapping from lawful guardianship changed under the BNS? Yes, for boys. Section 361 IPC protected a male under sixteen and a female under eighteen. Section 137(1)(b) BNS protects any 'child' — below eighteen under Section 2(3) BNS — so a boy aged sixteen or seventeen is now covered.

What is the BNS section for kidnapping for ransom? Section 140(2) BNS replaces Section 364A IPC with the same words and punishment: death, or imprisonment for life, and fine. In Shaik Ahmed v. State of Telangana (2021 INSC 308), the Supreme Court held that a ransom demand alone is not enough; a threat, conduct raising a reasonable apprehension of death or hurt, or actual hurt or death must also be proved.

Is kidnapping bailable under the BNS? Only the basic offence. The BNSS First Schedule lists Section 137(2) BNS as cognizable, bailable and triable by a Magistrate of the first class. Every aggravated form, Sections 87, 96, 97, 139, 140, 141 and 142, is cognizable and non-bailable.

Is it kidnapping if a minor girl leaves home on her own and joins the accused? It depends on what the accused did. In S. Varadarajan v. State of Madras ([1965] 1 S.C.R. 243), merely allowing a girl on the verge of majority to accompany him, without inducement, was held not to be 'taking'. In Anversinh v. State of Gujarat ([2021] 1 S.C.R. 249), the minor's consent was held immaterial and enticement may be subtle and earlier in time. Section 137(1)(b) BNS repeats 'takes or entices'.

What changed in the begging-racket offence? Section 139(1) BNS (formerly Section 363A(1) IPC) raises the punishment from up to ten years to rigorous imprisonment of not less than ten years extending to life, and fine. Maiming a child for begging under Section 139(2) now carries not less than twenty years, extending to the remainder of natural life, and fine; Section 363A(2) IPC provided imprisonment for life and fine.

Can a kidnapping case be settled by compromise? No. None of Sections 87, 96, 97 or 137 to 142 BNS is listed in either compounding table in Section 359 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Section 320 CrPC did not list Sections 359 to 369 IPC either.

Which law applies to a kidnapping committed before 1 July 2024? Section 358(2) BNS lets proceedings continue as if the IPC had not been repealed, so on a reading of that text a kidnapping committed before 1 July 2024 is charged under Sections 359 to 369 IPC. On a reading of Article 20(1) of the Constitution, the higher minimum sentences in Section 139 BNS cannot be imposed for earlier conduct.

Related

• Offences against women — IPC vs BNS
• Rape: IPC 375-376E vs BNS 63-71
• Organised crime — new Section 111 BNS
• Undertrial release under BNSS 479
• Offence before 1 July 2024 — which law applies
• IPC to BNS master table
• Sections 370–370A IPC vs Sections 143–144 BNS — Trafficking of Persons
• Section 98 CrPC vs Section 101 BNSS — Power to Compel Restoration of Abducted Females
• Sections 372–373 IPC vs Sections 98–99 BNS — Selling and Buying a Child for Purposes of Prostitution

Sources

• Bharatiya Nyaya Sanhita, 2023 (Gazette text): Sections 2(3), 2(35), 87, 96, 97, 111(1), 137 to 143 and 358.
• Indian Penal Code, 1860 (India Code text): Sections 10 and 359 to 370, with amendment footnotes.
• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 101, 201(2), 359, 479 and 531, and the First Schedule.
• Code of Criminal Procedure, 1973: Sections 98, 181(2) and 320, and the First Schedule entries for Sections 363 to 369 IPC (the Section 363 bail column is an unresolved "Ditto").
• Constitution of India: Article 20(1).
• Judgments read in full text: S. Varadarajan v. State of Madras (1965_1_243_253_EN.md); Thakorlal D. Vadgama v. State of Gujarat (1974_1_178_190_EN.md); Vikram Singh v. Union of India (2015_10_816_870_EN.md); Anversinh v. State of Gujarat (2021_1_249_263_EN.md); Shaik Ahmed v. State of Telangana (2021_6_462_485_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.