This Article is written by Usha r. Kamat, A Final Year Student studying at K L E Society’s Law Collage Chikodi. This Article provides an Understanding of the laws relating to kidnapping and Abduction under Bhartiya Nyaya Sanhita,2023.
The Bhartiya Nyaya Sanhita (BNS) is the new criminal code of India that replaced the Indian Penal Code (IPC) in 2024. The BNS was introduced to modernize India’s legal system and address contemporary challenges. It was enacted on December 25, 2023. This new legislation has been drafted by a committee of legal experts and policymakers. It is done to ensure it meets the needs of Indian society. The current case regarding kidnapping, where a group of persons chased newly wedded couples where they attacked the groom and fled with bride in Madhya Pradesh.
The current report of kidnapping and abduction cases filed up to over 107 cases across India. In this article, we will come to know the key sections of the BNS relating to kidnapping and abduction, examining definitions, penalties, and its exceptions.
What is kidnapping?
Kidnapping is a criminal offense that consists of the unlawful taking and carrying away of a person by force or fraud against his will. The reason for kidnapping is to exchange or demand money for illegal purpose, sexual abuse, rape and releasing the person who is under the control of predator (kidnapper) on demand of ransom.
Example: A 28-year-old man convinces a 16-year-old girl to run away from her parents to get married and takes her to another city. This is kidnapping from lawful guardianship under section 361 of Indian Penal Code and section 152 of Bhartiya Nyaya Sanhita
What is abduction?
Abduction is an act of taking or compelling person forcefully from one place to other place against their will. Abduction formally relates to women who is unlawfully carried away for marriage or sexual intercourse. Kidnapping basically involves minors and unsound persons where abduction can involve individuals of any age.
Example: A man forcibly drags a woman into a vehicle with the intention of forcing her into marriage without her consent. This is abduction for marriage under section 366 of Indian Penal Code and section 159 of Bhartiya Nyaya Sanhita.
Kidnapping under Bhartiya Nyaya Sanhita, 2023:
Section 137 of Bhartiya Nyaya Sanhita, 2023, describes the offence kidnapping.
According to clause (1) of section 137 of Bhartiya Nyaya Sanhita,2023, the offence of kidnapping is of two kinds:
1. Kidnapping from India
2. Kidnapping from lawful guardianship.
1. Kidnapping from India:
As per sub-clause (a) of section 137 (1) of Bhartiya Nyaya Sanhita, 2023 kidnapping from India includes conveying an individual beyond the boundaries of India without consent of that individual or of legally authorised person to consent on his behalf.
- Example: Taking someone to a foreign country or alien country without their consent or authorization is considered kidnapping from India.
2. Kidnapping from Lawful guardianship:
As per sub-clause (b) of section 137 (1) of Bhartiya Nyaya Sanhita, 2023 kidnapping from Lawful guardianship refers to Drawing in and removing or luring away a child or unsound person from their lawful guardian without consent.
- Example: A person luring a minor away from their maternal uncle’s custody who is legal guardian of that minor without permission is considered kidnapping from lawful guardianship.The word “lawful guardian” in this clause refers any person lawfully entrusted with the care or custody of such child or other person
The exception in this clause is it does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or to the person 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.
Essentials of Kidnapping:
1. Intent: Intent is the most important aspect of kidnapping. the intent to harm, or to exploit, or even to gain some benefit, whether as financial, or personal, forms the basis of the crime.
2. Force or Fraud: Kidnapping involves use of force, threats, or fraudulent ways. The act is done unlawfully and without consent of the victim.
3. Unlawful confinement: the victim must be unlawfully detained, transmitted or confined by force.
4. Without consent of parents or lawful guardian: Any other person taking minor out should have permission of the guardian unless it will be the act of kidnapping.
5. Static: it is not necessary that victim to be moved to a far-off place. even taking a minor to the next house or nearby place without consent of lawful guardian leads to kidnapping.
Motive behind kidnapping:
1. Ransom or extortion:
People being illiterate and unemployed drives their source of income through ransom or extortion which is done by kidnapping, demanding money or assets from the victim’s family or government.
Example: Criminals kidnap a wealthy businessman’s child and demand a large sum for their release.
2. Revenge or Personal Vendetta:
The reason for kidnapping is where People having conflicts or disputes or business rivalries between them.
Example: A person is kidnapped by a rival family to settle a long-standing dispute.
3. political or terrorist objectives:
Kidnapping can be used to force concessions from a government or it is a strategy used by terror groups to release prisoners.
Example: Government officials or soldiers are kidnapped by insurgents to demand concessions.
Punishment under Bhartiya Nyaya Sanhita for Kidnapping:
According to clause (2) of section 137 of Bhartiya Nyaya Sanhita, 2023 Whoever kidnaps any person from India or from lawful guardianship shall be punished with imprisonment of either description for a term to seven years, and also be liable to fine.
Explanation: Any person held liable of the offence of kidnapping an individual or minor from India or from any lawful guardian will be punished with imprisonment of term which extends to seven years and also liable to fine
Abduction under Bhartiya Nyaya Sanhita, 2023:
According to section 138 of Bhartiya Nyaya Sanhita, 2023
Whoever compels or induces any person to go from any place, either by force or by a way which is deceitful is said to abduct that person.
Explanation: Abduction is a criminal offense which induces any person forcibly without their consent whether adult or minor to move from one place to another.
Example: If a person is forcibly taken from their residence to another location without their consent, it is considered as abduction.
The primary focus is on the unlawful act of removing or compelling a person away, regardless of age, with an intent to commit further offenses.
Essentials of Abduction:
1. Forcible or Deceptive Movement:
The victim must be moved forcefully from one location to other.
Example: If a person is forced into a vehicle and taken from one location to another location against their will, it is abduction.
2. Lack of Consent:
The victim must be involuntarily moved to another location, without genuine consent of the victim.
Example: If someone is tricked into believing that they are being taken for a job but are instead trafficked, it is abduction.
3. Intent behind the act:
Intention in abduction is also an important aspect of kidnapping. It determines the gravity of an offence. The mere act of abduction may not always be punishable unless it is proved that the act was done for an unlawful purpose.
Example: If a criminal abducts a businessman intending to demand ransom, it constitutes an offense of abduction.
4. Movement Of Victim: in abduction there should be movement of the victim from one place to other place without their consent.
Example: If a person is moved from one state to other state without his consent it leads to abduction.
5. Age does not matter: unless kidnapping where minors and unsound mind persons are taken away, Abduction applies to persons of all age.
Kidnapping or maiming of a child for purposes of begging:
According to section 139 of Bhartiya Nyaya Sanhita:
Any person who kidnaps a child which is below the age of 18 years who is not a lawful guardian of that child fraudly obtains the custody of child for the purpose of begging will be held liable with rigorous imprisonment for term of 10 years and may extend to imprisonment for life and also liable to fine
Where a person who is not a lawful guardian of child intends to employ child for the purpose of begging it shall be presumed unless the contrary is proved, that he kidnapped and obtained the custody of such child in order that it might be employed or used for the purposes of begging.
Kidnapping or Abduction with Intent to Murder:
If a person is kidnapped or abducted with the intention of murdering them or putting them in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for up to ten years, and with a fine.
Kidnapping or Abduction with Intent to Confine Wrongful Act:
If a person is kidnapped or abducted with the intent of causing any wrongful act and secretive confinement, shall be punished with imprisonment for up to seven years, coupled with a fine.
Kidnapping or Abduction for Grievous Hurt, Slavery, or satisfying the desire
If an individual kidnaps or abducts someone with the intent to subject them to grievous hurt, slavery, or to commit rape shall be punished with imprisonment for up to ten years, along with a fine.
Landmark Judgements:
1. State of Haryana v. Raja Ram (1973 AIR 819)
Facts of the case: A man induced a minor girl below 18 years of age to leave her lawful guardianship.
Judgement: The Supreme Court held that even if the minor consents, it is still kidnapping if she is taken away without parental permission.
2. S. Varadarajan v. State of Madras (1965 AIR 942)
Facts of the case: A 17-year-old girl wilfully left her home and married a Man
Judgement: The Supreme Court held that mere consent of the minor girl does not amount to kidnapping unless there is an inducement.
Conclusion
In conclusion, The Bhartiya Nyaya Sanhita, 2023, reserve and strengthens the legal provisions related to kidnapping and abduction, ensuring stricter punishments for heinous crimes. kidnapping is an act of taking away minors and unsound mind persons from their lawful guardian without consent while abduction applies to any individual who force or deceit to compel movement. Understanding these differences is necessary for clarity and effective prosecution. With enhanced clarity and punitive measures, BNS 2023 aims to provide better protection against crimes involving unlawful detention and coercion.
Reference:
https://www.britannica.com/topic/kidnapping
https://www.freelaw.in/legalarticles/Kidnapping-and-Abduction-Key-Differences
https://www.drishtijudiciary.com/to-the-point/bharatiya-nyaya-sanhita-&-indian-penal-code/kidnapping
https://lawctopus.com/clatalogue/clat-pg/ipc-notes-kidnapping-and-abduction/https://www.myjudix.com/post/kidnapping-and-abduction-under-bns-bharatiya-nyaya-sanhita-notes
