Kidnapping and Abduction: Differences and Punishment

Under the Bharatiya Nyaya Sanhita, 2023 (BNS), kidnapping (Section 137) means taking a person out of India without consent, or taking or enticing a child (anyone below eighteen) or a person of unsound mind out of the keeping of a lawful guardian, and it is punishable with up to seven years and fine. Abduction (Section 138) means compelling a person by force, or inducing them by deceit, to go from any place; it carries no punishment of its own and becomes an offence only when joined with a wrongful purpose, such as murder, ransom or confinement under Section 140. The short version: in kidnapping the victim's consent does not matter, in abduction force or deceit is the whole point.

This explainer is written for B.A. LL.B. and LL.B. students preparing for criminal law papers, and for parents and citizens who want to know what the law actually says. The BNS came into force on 1 July 2024 and replaced the Indian Penal Code (IPC), so older textbooks still cite Sections 359 to 369 IPC. You need both numbers in your head: the new one to state the law, the old one to read the case law.

What does Section 137 BNS say about kidnapping?

Section 137(1) creates two kinds of kidnapping:

• Kidnapping from India (clause (a)): conveying any person beyond the limits of India without the consent of that person, or of someone legally authorised to consent on their behalf.
• Kidnapping from lawful guardianship (clause (b)): taking or enticing any child or any person of unsound mind out of the keeping of the lawful guardian, without the guardian's consent.

The Explanation says "lawful guardian" includes any person lawfully entrusted with the care or custody of the child. So a hostel warden in Nagercoil or a grandmother looking after a child in Madurai can be the lawful guardian for this purpose.

There is one Exception. Clause (b) does not apply to a person who in good faith believes himself to be the father of an illegitimate child, or believes himself entitled to its lawful custody, unless the act is done for an immoral or unlawful purpose.

Section 137(2) prescribes the punishment: imprisonment of either description up to seven years, and fine.

The age change students must not miss

The old Section 361 IPC protected a male under sixteen and a female under eighteen. Section 137 BNS uses the word "child", and Section 2(3) BNS defines a child as any person below the age of eighteen years. The age limit is now eighteen for every child, whatever the gender. If your exam answer still says "sixteen for boys", you are quoting repealed law.

What is abduction under Section 138 BNS?

Section 138 is a single sentence: whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. The section defines the act and stops there. Unlike Section 137, it attaches no punishment. Abduction is punished only through the aggravated provisions that follow, and through a few sections placed elsewhere in the Sanhita.

How are kidnapping and abduction different?

1. Who can be the victim. Kidnapping from guardianship protects only a child or a person of unsound mind. Abduction can be committed against anyone, of any age.
2. Means used. Kidnapping needs only "taking or enticing"; no force or fraud is required. Abduction requires force, or deceitful inducement.
3. Consent. In kidnapping from guardianship, the consent of the child is irrelevant; only the guardian's consent matters. In abduction, if the person goes freely and is not deceived, the definition in Section 138 is simply not met.
4. Punishment. Kidnapping is punishable by itself under Section 137(2). Bare abduction is not; it needs an added intention or purpose.

What are the punishments for the aggravated forms?

These provisions apply to both kidnapping and abduction:

• Section 140(1), to murder or put in danger of murder: imprisonment for life, or rigorous imprisonment up to ten years, and fine (old Section 364 IPC).
• Section 140(2), for ransom or to compel the Government, a foreign State, an international inter-governmental organisation or any other person to act, with threats of or actual death or hurt: death or imprisonment for life, and fine (old Section 364A IPC).
• Section 140(3), with intent to secretly and wrongfully confine: up to seven years and fine (old Section 365 IPC).
• Section 140(4), to subject the person to grievous hurt, slavery or unnatural lust: up to ten years and fine (old Section 367 IPC).
• Section 87, kidnapping or abducting a woman to compel marriage against her will or for illicit intercourse: up to ten years and fine (old Section 366 IPC).
• Section 97, kidnapping or abducting a child under ten with intent to steal from its person: up to seven years and fine (old Section 369 IPC).
• Section 139, kidnapping or obtaining custody of a child for begging: rigorous imprisonment of not less than ten years, which may extend to life, and fine. Maiming a child for begging carries not less than twenty years, which may extend to life (meaning the remainder of natural life), and fine (old Section 363A IPC).
• Section 141, importing a girl under twenty-one or a boy under eighteen into India for illicit intercourse: up to ten years and fine. The old Section 366B IPC covered only girls.
• Section 142, knowingly concealing or confining a kidnapped or abducted person: punished as if the accused had kidnapped or abducted that person with the same intention (old Section 368 IPC).

How have the courts read "taking" and "enticing"?

Three Supreme Court decisions decided under Section 361 IPC still guide how Section 137 BNS is read, since the operative words are the same.

S. Varadarajan v. State of Madras (1964, reported as AIR 1965 SC 942). This appeal came from the Madras High Court. A seventeen year old girl, described by the Court as on the verge of majority, telephoned the accused, asked him to meet her, got into his car on her own, and later went with him to the Registrar's office, where an agreement to marry was registered. The Court set aside his conviction under Section 363 IPC. It drew a line between "taking" a minor and merely allowing her to accompany you. Where a minor leaves her guardian knowingly and voluntarily, the prosecution must show the accused induced her or took an active part in forming her intention.

State of Haryana v. Raja Ram (1972, AIR 1973 SC 819). The Court said the section protects minors from seduction for improper purposes and protects the rights of guardians. "Keeping" means charge, protection, maintenance and control, which can exist even when the child moves about freely. The minor's consent is immaterial, and persuasion that makes the minor willing to leave is enough.

Thakorlal D. Vadgama v. State of Gujarat (1973, AIR 1973 SC 2313). The Court upheld a conviction under Section 366 IPC. Presents, close association and an earlier promise to keep the girl permanently, built up over months before she left her father's house, were held to be inducement. Varadarajan was distinguished: if the accused laid the foundation earlier, he cannot rely on her apparently voluntary departure.

How should you answer this in an exam?

• Open with both definitions, citing Sections 137 and 138 BNS with the IPC pointers in brackets.
• Break kidnapping into ingredients: a child or person of unsound mind, taking or enticing, out of the keeping of the lawful guardian, without the guardian's consent.
• Present the differences as a numbered list, and flag that bare abduction is not punishable.
• Mention the age change under Section 2(3) BNS.
• Apply Varadarajan, Raja Ram and Vadgama to the facts given. Problem questions usually turn on whether the accused induced the minor or merely went along.

Students who want to see how these cases reach the police and courts in practice can volunteer with the college legal aid clinic.

Sources

• India Code: The Bharatiya Nyaya Sanhita, 2023: official record of Act 45 of 2023, in force from 1 July 2024.
• AdvocateKhoj: Section 137 BNS: bare text of the kidnapping provision with Explanation and Exception.
• AdvocateKhoj: Section 140 BNS: bare text on kidnapping or abducting to murder, for ransom and other aggravated forms.
• Tripura Police: BNS and IPC comparison: section by section table mapping BNS provisions to the IPC.
• AdvocateKhoj: Section 138 BNS: bare text of the definition of abduction.
• AdvocateKhoj: Section 2 BNS: definitions, including "child" in clause (3).
• AdvocateKhoj: Section 87 BNS: kidnapping or abducting a woman to compel marriage.
• AdvocateKhoj: Section 97 BNS: kidnapping or abducting a child under ten to steal from its person.
• State of Haryana v. Raja Ram (1972): Supreme Court judgment on "keeping" and the immateriality of the minor's consent.
• S. Varadarajan v. State of Madras (1964): Supreme Court judgment on "taking" versus allowing a minor to accompany.
• Thakorlal D. Vadgama v. State of Gujarat (1973): Supreme Court judgment on earlier inducement as "enticing".