AMBITION LAW INSTITUTE

ID No. : ____________________ Date : _____________________

BHARATIYA NYAYA SANHITA

Q. A minor girl of age 17 years was living with her parents when she developed intimacy with a boy
of 20 years old who was working as a helper in the nearby grocery shop. She was frequently seen
in the company of this boy and always looked for excuses to visit that particular grocery shop.
One fine day she left her house on her own and reached the shop where she persuaded this boy
to take her to some other town so that they both could marry and be with each other always. The
accused took her to several places. He was then arrested and prosecuted for kidnapping. Decide,
if he should be convicted or acquitted. Give reasons.
Ans. The issue under consideration in the present question is the law relating to 'kidnapping' under the BNS.
Kidnapping is of two types: kidnapping from India, and kidnapping from lawful guardianship [Sec. 137(1),
BNS].
The literal meaning of kidnapping is 'child stealing' (kid means child and napping means to steal).
The present problem is concerned with the offence of Kidnapping from Lawful Guardianship [Sec. 137(1)(b),
BNS] which provides, "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."
Explanation: The words "lawful guardian" in this section includes any person lawfully entrusted with the
care or custody of such minor or other person.“Exception - This section 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.
Punishment for kidnapping [Sec. 137(2), BNS]: Whoever kidnaps any person from India or from lawful
guardianship, shall be punished with imprisonment for a term which may extend to seven years, and shall
also be liable to fine.
Sec. 137(1)(b) of BNS primarily meant for protecting minors and persons of unsound mind, and then, the
rights of their guardians. The object is to protect children of tender age from being taken away for wrongful
or immoral purposes, and also to provide for the protection of rights of parents or lawful guardians, who
provide care and resources for their upbringing Kidnapping under this section is a 'strict liability' offence,
making the accused's motive, intention or knowledge irrelevant. The term "whoever" includes any person,
regardless of gender or age. Thus, even a minor can be guilty of kidnapping. Similarly, a woman can be a
kidnapper.
Taking or enticing: The word "takes" means to cause to go, to escort or to get into the possession; it does
not imply force or fraud. It implies physical taking. When the accused takes the minor with, whether she
was willing or not (implying the absence of the minor's desire), the act of taking is complete.
The word "entice" involves an idea of inducement or allurement (e.g. a promise of marriage) by exciting
hope or desire in the other. One does not entice another unless the latter attempted to do a thing which he or
she would not otherwise do. Persuasion by the accused that creates willingness in the minor to leave their
guardian is sufficient for kidnapping. Force or fraud is not necessary for the offence of kidnapping; Persuasion
is sufficient. Unlike taking, the mental attitude of the minor is relevant in enticing.
‘Taking’ necessarily involves bodily removal; 'Enticing' is inducing a minor to go off on her own accord to the
kidnapper.
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The two words "takes" and "entices", as used in Sec. 361 are intended to be read together so that each takes
to some extent its colour and content from the other. They suggest that if the minor leaves her parental
home, completely uninfluenced by any promise, offer or inducement from the side of the accused, then the
accused is not guilty under Sec. 137(1)(b). If the minor leaves without inducement and the accused "merely
accompany her" it is not kidnapping. Helping a girl with shelter or taking her to a hospital is not kidnapping.
Taking a 15-year-old girl to one's home who claims to be 19 and is ill-treated by her parents is not kidnapping
if there is no inducement.
Further, a forwardness on the part of the girl (or the fact that the girl was easily persuaded) would not avail
the person taking her away from being guilty of the offence and that if by moral force a willingness is
created in the girl to go away with the former, the offence would be committed unless her going away is
entirely voluntary. The defence that the girl was of easy virtue would not “be sufficient to make accused not
liable.
In S. Vardarajan vs. State of Madras, AIR 1965 SC 942 case, a minor girl was living with her father and
studying in a college.
She had become friendly with the appellant whom she wanted to marry. However, her father did not approve
of it and took her to the house of a relative and left there so that for some time she was kept as far away
from the accused as possible. However, on the next day, she telephoned the appellant asking him to meet her
on a certain road in that area and then went to that road herself. They then went to the Registrar's office and
got an agreement to marry. Thereafter they travelled together to various places. The appellant was convicted
under Sec. 363 of IPC and his appeal to the High Court was dismissed. The matter went to the Supreme
Court.
The issue was: Whether accused can be said to have "taken" her“away from the keeping of her guardian?
The court laid down the following propositions of law:
(i) There is a distinction between "taking" and "allowing a minor to accompany a person." Where a minor
leaves her guardian's protection knowing and having capacity to know the full import of what she is
doing and voluntarily joins the accused person, in such a case there is no 'taking' by the accused.
Something more has to be shown in a case of this kind, as for example, some kind of inducement held
out by the accused or an active participation by him in the formation of the intention of the minor to leave
the guardian's house. Thus, there must be some proof of the accused having done something which led
to the girl going out of the keeping of her guardian.
(ii) It is not necessary that the accused must have played such an active part immediately prior to the minor
leaving the guardian's protection. He would be guilty if he had at some earlier stage solicited or persuaded
the minor to do so, resulting in her leaving the guardian's protection.
(iii) If the minor leaves her guardian's protection without the accused having played any active part and later
joins the accused and the accused helps her in her design not to return to her guardian's house, then,
though the part played by the accused can be regarded as facilitating the fulfilment of the intention of the
minor, that part played by the accused falls short of an inducement and would not amount to "taking".
Here, the accused's participation in the whole act was passive - it was in the nature of providing a
support-system in giving shape to the desire of minor.
(iv) Taking may be with the consent of the minor. But minor's consent is irrelevant. Since kidnapping is
primarily an offence against the lawful guardian, it is his consent alone that matters. If the minor girl is
happy to go with the accused, there will still be taking if the accused had persuaded or assisted her to do
so.
(v) Sec. 361 is intended more for the protection of the minors, than for the rights of the guardians of such a
person and thus the word "taking" should be given a wide meaning. It may be that mischief partly
consists in the violation of the guardian's right to keep their wards but the more important object of these
provisions is to afford security and protection to the wards themselves.
On the facts of the case, the court acquitted the appellant on the following grounds:
(a) There was no evidence that she had left the house at the instance or even a suggestion of the appellant.

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(b) She had herself telephoned the appellant, she had herself decided to many him and at no time the
appellant used force or any inducement.
(c) The appellant by complying with her wishes cannot be said to have taken her out of the keeping of her
lawful guardian.
(d) She willingly accompanied him and the law did not cast upon him the duty of taking her back to her
father or even of telling her not to accompany him.
(e) She attained the age of discretion and was on the verge of attaining majority. She was an educated girl
who had lived all her life in a city. Thus, she was capable of thinking for herself.
Conclusion: In the case in question, the minor girl herself persuaded the accused boy to take her to some
other town so that they both could marry and be with each other always. There was no evidence that she
had left the house at the instance or even a suggestion of the accused. She had herself decided to marry him
and at no time the accused used force or any inducement. The accused by complying with her wishes
cannot be said to have taken her out of the keeping of her lawful guardianship.

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