Section 363 IPC in BNS: Section 137 Kidnapping, Punishment, Bail

Section 363 IPC is now Section 137(2) of the Bharatiya Nyaya Sanhita, 2023 (BNS). Section 137 also absorbs the old Sections 359, 360 and 361 IPC, and punishes kidnapping with imprisonment up to seven years and fine. The BNS now protects every child under eighteen, boy or girl, from kidnapping from lawful guardianship.

What Section 137 BNS says

Section 137(1) describes two kinds of kidnapping.

Kidnapping from India: Section 137(1)(a)

Conveying any person beyond the limits of India without that person’s consent, or without the consent of someone legally authorised to consent on his behalf. This was Section 360 IPC.

Kidnapping from lawful guardianship: Section 137(1)(b)

Taking or enticing a child, or a person of unsound mind, out of the keeping of the lawful guardian without the guardian’s consent. This was Section 361 IPC. “Lawful guardian” includes any person lawfully entrusted with the care or custody of the child.

The ingredients are:

1. The victim is a child (under eighteen) or a person of unsound mind.
2. The accused took or enticed the victim.
3. The victim was taken out of the keeping of the lawful guardian.
4. The guardian did not consent.

The child’s own consent is irrelevant. The law protects the guardian’s right of custody and the child’s safety.

The exception

The section does not apply to a person who in good faith believes himself to be the father of an illegitimate child, or entitled to its lawful custody, unless the act is done for an immoral or unlawful purpose.

What changed from the IPC

• Age made gender neutral: Section 361 IPC protected boys under sixteen and girls under eighteen. Section 137 BNS uses the word “child”, meaning anyone under eighteen, so boys aged sixteen and seventeen are now protected.
• Consolidation: four IPC sections (359, 360, 361, 363) are now one section.
• The punishment (up to seven years and fine) is unchanged.

Abduction: Section 138 BNS

Section 138 (old 362 IPC) defines abduction: compelling a person by force, or inducing him by deceitful means, to go from any place. Abduction is not punished on its own. It becomes an offence when done for a purpose listed in Sections 140 and following, such as murder, ransom or wrongful confinement.

Section 139 BNS: kidnapping or maiming a child for begging

• 139(1): kidnapping a child, or obtaining custody of a child without being the lawful guardian, so that the child may be employed for begging. Rigorous imprisonment of not less than ten years, extendable to life, and fine.
• 139(2): maiming a child for begging. Imprisonment of not less than twenty years, extendable to life for the remainder of natural life, and fine.
• 139(3): a person who is not the lawful guardian and uses a child for begging is presumed to have kidnapped or obtained custody of the child for that purpose, unless proved otherwise.

This is a major change. Under Section 363A IPC, ten years was the maximum for kidnapping a minor for begging. It is now the minimum.

Section 140 BNS: aggravated kidnapping or abduction

Sections 140(1), 140(2) and 140(4) are cognizable, non-bailable and triable by the Court of Session. Section 140(2) newly names an “international inter-governmental organisation” among those who may be coerced, which Section 364A IPC did not mention.

Important case law

• S. Varadarajan v. State of Madras (1965): where a minor girl close to majority left her guardian’s home on her own and joined the accused, without any inducement or active role by him, the Supreme Court held this was not “taking” out of lawful guardianship. Active participation by the accused is needed.
• Thakorlal D. Vadgama v. State of Gujarat (1973): the Court clarified that if the accused had earlier laid the groundwork, through promises or persuasion, that led the minor to leave, it can still amount to taking or enticing, even if the minor left on her own at the last step.

Common confusions

• Kidnapping vs abduction: kidnapping from guardianship needs a child or person of unsound mind, and consent of the victim is irrelevant. Abduction can be of anyone, but needs force or deceit. Kidnapping is complete once the victim is taken; abduction is a continuing offence.
• Parental custody disputes: one parent taking a child from the other is often a custody issue for the family court, especially where the exception or lawful entitlement applies.
• Section 137 vs 140(2): ordinary kidnapping is bailable with up to seven years; kidnapping for ransom carries death or life.

Practical guidance for the public

• If a child is missing, go to the nearest police station immediately. A cognizable offence must be registered as an FIR; no waiting period applies.
• Carry a recent photograph, details of clothing, phone numbers, and names of friends or suspects.
• Information can also be shared with Childline (1098) and the Emergency Response helpline (112).
• If the police refuse to register the case, send the information in writing to the Superintendent of Police under Section 173(4) BNSS, and approach the Magistrate if needed.

Exam angle

• 359, 360, 361, 363 IPC to 137 BNS; 362 to 138; 363A to 139; 364, 364A, 365, 367 to 140(1) to (4).
• Age of a child for kidnapping from guardianship: eighteen for both sexes under the BNS.
• Section 139: ten years is now the minimum (earlier the maximum under 363A).
• Section 140(2) adds “international inter-governmental organisation”.
• Varadarajan (1965) and Vadgama (1973) on the meaning of “taking”.

Frequently asked questions

What is the new section for 363 IPC?

Section 363 IPC is now Section 137(2) of the BNS.

Is kidnapping bailable under BNS?

Simple kidnapping under Section 137(2) is bailable and cognizable. Kidnapping for begging (Section 139) and kidnapping for murder or ransom (Section 140(1) and (2)) are non-bailable.

What is the new section for 364A IPC (kidnapping for ransom)?

Section 140(2) BNS, punishable with death or imprisonment for life and fine.

What is the age of a child for kidnapping under BNS?

Under eighteen years, for both boys and girls.

What is the difference between kidnapping and abduction?

Kidnapping from guardianship concerns children or persons of unsound mind and ignores the victim’s consent; abduction concerns any person moved by force or deceit.

Quick quiz

Sources

• Bharatiya Nyaya Sanhita, 2023, Sections 137 to 140
• Bharatiya Nagarik Suraksha Sanhita, 2023, Section 173 and First Schedule
• S. Varadarajan v. State of Madras (Supreme Court, 1965)
• Thakorlal D. Vadgama v. State of Gujarat (Supreme Court, 1973)

This page is for education and general information, not legal advice for a specific case.