A
PROJECT ON
A STUDY OF THE ESSENTIAL INGREDIENTS OF THE
OFFENCE OF KIDNAPPING FROM LAWFUL GUARDIANSHIP
WITH RELEVANT CASE LAWS
[Submitted as partial requirement for B.A.LL.B. (Hons.) 5 year Integrated course]
Submitted on:-14 September 2024
Submitted By :- Submitted To :-
Neha Raj Prof. Tejendra Meena
Roll No. 72 Faculty: Law of Crimes
Semester – VIII B
UNIVERSITY FIVE YEAR LAW COLLEGE
UNIVERSITY Of RAJASTHAN
JAIPUR
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CERTIFICATE
Prof. Tejendra Meena Date: 22/04/2025
(Faculty)
University Five Year Law College
This is to certify that Neha Raj of the VIII Semester of the University Five Year Law
College, University of Rajasthan, has carried out the project entitled A STUDY OF
THE ESSENTIAL INGREDIENTS OF THE OFFENCE OF KIDNAPPING
FROM LAWFUL GUARDIANSHIP WITH RELEVANT CASE LAWS under my
supervision and guidance. It is an investigation report of a minor project. The student
has completed research work in my stipulated time and according to the norms
prescribed for the purpose.
Supervisor
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DECLARATION
I, Neha Raj, hereby declare that this project titled A STUDY OF THE ESSENTIAL
INGREDIENTS OF THE OFFENCE OF KIDNAPPING FROM LAWFUL
GUARDIANSHIP WITH RELEVANT CASE LAWS is based on the original
research work carried out by me under the guidance and supervision of Prof.
Tejendra Meena.
The interpretations put forth are based on my reading and understanding of the
original texts. The books, articles, and websites, etc., which have been relied upon by
me have been duly acknowledged at the respective places in the text.
For the present project, which I am submitting to the university, no degree or diploma
has been conferred on me before, either in this university or in any other university.
Date: 22/04/2025 Signature
Neha Raj
Roll no. 72
Semester: VIII B
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ACKNOWLEDGMENT
I have written this project, A STUDY OF THE ESSENTIAL INGREDIENTS OF
THE OFFENCE OF KIDNAPPING FROM LAWFUL GUARDIANSHIP WITH
RELEVANT CASE LAWS, under the supervision of Prof. Tejendra Meena, faculty,
University Five Year Law College, University of Rajasthan, Jaipur. His Valuable
suggestions herein have not only helped me immensely in making this work but also
in developing an analytical approach to this work.
I found no words to express my sense of gratitude to Director Dr. Ankita Yadav,
Deputy Director Dr. Aarti Sharma for constant encouragement at every step.
I am extremely grateful to the librarian and library staff of the college for the support
and cooperation extended by them from time to time.
Neha Raj
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TABLE OF CONTENT
SR. NO. SUBJECT
1 INTRODUCTION
CHAPTER-1 ESSENTIAL INGREDIENTS OF THE
OFFENCE
CHAPTER-2 ROLE OF CONSENT IN KIDNAPPING
FROM LAWFUL GUARDIANSHIP
CHAPTER-3 RELEVANT CASE LAWS
CHAPTER-4 DEFENCES AND LEGAL EXEMPTIONS
2 CONCLUSION
3 BIBLIOGRAPHY
INTRODUCTION
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The offence of kidnapping from lawful guardianship is defined under Section 137(1)
(b) of the Bharatiya Nyaya Sanhita, 2023. It refers to the unlawful taking or enticing
of a minor or a person who is under the care and custody of a lawful guardian, without
the consent of that guardian. This offence is distinct from other forms of kidnapping,
as it specifically involves the wrongful removal of a person from the custody of their
legal guardian, whether the guardian is a parent, relative, or a person with lawful
authority over the individual.
The key element in this offence is the concept of "lawful guardianship." A lawful
guardian can be either a parent or any other person entrusted with the care and
protection of a minor, or a person who is legally responsible 1 for the individual, such
as in the case of a court-appointed guardian. The guardian has the right to control the
minor's activities and well-being, which is an essential aspect of this offence. The
wrongful taking or enticing of the individual from the custody of this guardian creates
a significant legal violation.
Kidnapping from lawful guardianship typically involves two main acts "taking" or
"enticing." "Taking" refers to the physical removal of the individual from their
guardian's custody, while "enticing" implies influencing the individual, often through
persuasion or manipulation, to leave the guardian's protection willingly. In cases
where a minor is involved, the offence occurs even if the minor may have left of their
own accord, as long as the guardian's consent was not obtained.
In India, the punishment for kidnapping from lawful guardianship is outlined in
Section 137(2) of the BNS, 2023 which prescribes imprisonment for a term that may
extend to seven years, along with a fine. Understanding the definition and legal
framework of this offence helps in distinguishing2 it from other criminal acts, such as
abduction or wrongful restraint, while underscoring the seriousness of violating the
rights of a lawful guardian.
CHAPTER 1
1
Bharatiya Nyaya Sanhita, 2023 - Bare act with latest amendments
2
The Indian Penal Code by Hari Singh Gour (Central Law Agency, 2014)
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ESSENTIAL INGREDIENTS OF THE OFFENCE
To establish the offence of kidnapping from lawful guardianship, certain essential
ingredients must be proven beyond a reasonable doubt. These include the unlawful
taking or enticing of a person under the lawful guardianship of another, and the
absence of consent from the lawful guardian. The key elements are carefully
structured to distinguish3 this crime from other similar offences like abduction or
wrongful restraint. Each ingredient plays a critical role in proving the commission of
this offence.
The first essential ingredient is the wrongful taking or enticing of a person. The term
"taking" refers to the actual physical removal of the individual from the custody or
control of their lawful guardian. This could involve forcibly taking the person or using
coercive methods. On the other hand, "enticing" refers to persuading or influencing
the individual to leave the guardian’s protection willingly, often through promises or
manipulation. This element is crucial because it determines whether the offence is one
of kidnapping or merely a civil dispute, such as a family dispute.
Another significant element is that the person being taken or enticed must be under
lawful guardianship. A lawful guardian is someone who is legally entrusted with the
responsibility of taking care of a minor or a person who cannot manage their own
affairs. This could be a parent, a relative, or a legally appointed guardian. For the
offence to be committed, the individual being taken or enticed must be a minor or
someone unable to protect their own interests, and their removal must be without the
consent of the lawful guardian. Lastly, the lack of consent from the lawful guardian is
essential to proving the offence. Even if a minor or an individual under guardianship
agrees to leave their home or place of care, the crime occurs if the guardian did not
consent to this act. In the case of minors, their consent is not typically considered
valid, as they are deemed incapable of making such decisions on their own. This legal
framework ensures that the rights and protection of vulnerable individuals,
particularly minors, are upheld.
CHAPTER 2
3
Indian Penal Code by K.K. Aziz (Law Publishers, 2016)
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ROLE OF CONSENT IN KIDNAPPING FROM LAWFUL
GUARDIANSHIP
Consent plays a significant role in the offence of kidnapping from lawful
guardianship, as it can serve as a critical factor in determining whether the crime has
been committed. The absence of the lawful guardian's consent is a key ingredient in
establishing the offence. If the guardian has not consented to the removal or
enticement of the minor or individual under their care, the act is considered
kidnapping, even if the minor voluntarily agrees to leave. In contrast, if the guardian's
consent is obtained, the act may not amount to kidnapping, but could potentially
involve other legal issues.
In cases involving minors, consent is particularly important because children are
presumed to lack the legal capacity to make certain decisions, such as leaving the
custody of a guardian. Even if a minor consents to leave their home or the care of
their guardian, such consent is not considered valid under the law. The rationale
behind this is the protection of minors from exploitation or manipulation, as they may
not fully understand the consequences of their actions. Therefore, a minor's
willingness to leave their lawful guardian's custody does not negate the fact that the
guardian's consent is required for any such act to be legal.
Furthermore, the concept of consent extends to enticing a person under guardianship.
If an individual influences or persuades4 a minor to leave their lawful guardian's care,
the act may still amount to kidnapping, even if the minor willingly agrees. This is
because the law focuses on the wrongful act of enticing the person away from the
guardian, regardless of the minor's willingness. The focus is on the authority and
rights of the guardian, rather than the individual’s own consent in such cases.
In some instances, the law may allow exceptions where a guardian's consent is
implied or granted under specific circumstances. For example, in cases where a parent
has voluntarily allowed a minor to stay elsewhere temporarily, the consent of the
guardian may not be an issue.
CHAPTER 3
4
Indian Penal Code by Ratanlal & Dhirajlal (LexisNexis, 2020)
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RELEVANT CASE LAWS
Courts have often dealt with the complexities of this offence, establishing key legal
principles and providing clarity on the elements that constitute the crime. Following
are some landmark cases that helps in clarifying the interpretation of Section 137(1)
(b) of the BNS, 2023.
State of Haryana vs. Raja Ram (1973) in this case, the main accused seduced the
victim, a girl of 14 years old, to come out of her parental home and leave with him.
Knowing this, the father of the girl warned the accused not to enter his house and that
he should never talk to the girl. Because there was no way to approach her, the
accused started sending letters to the girl through the respondent, Raja Ram. One day,
Rajalaam brought her to his house, and the girl left with the main accused.
From the facts, it can be understood that the respondent is not the main accused who
enticed her. However, Raja Ram is the medium or means by which the design of the
main accused was achieved. So, the issue before the courts is whether Raja Ram, the
respondent in this case, can be convicted under Section 137(1)(b) of the BNS, 2023.
The Trial Court convicted him and the High Court acquitted him. The case, on appeal,
came before the Supreme Court.
The three-judge Supreme Court bench clearly and in a detailed manner explained the
terms "takes" and "entices" and this interpretation was still significant for the
kidnapping cases. The Court, then, gave a verdict stating that the conviction by the
Trial Court was correct and set aside the High Court's decision.
Thakorlal D. Vadgama vs. State of Gujarat (1973) the accused, in this case, would
usually visit prostitutes. One day, he saw a girl of sixteen years old as a prostitute. He
took her, without knowing that he was married and her husband was alive, to his
house so that she could live with him. The accused was charged with Section 137(1)
(b) of the BNS, 2023. The matter came before the Supreme Court, where the Court
held that the accused's charge failed as the girl, allegedly to be kidnapped by the
accused, was not under the custody of her husband, but was living with the
prostitutes.
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In this case, the Court observed that the word "takes" does not require any element of
force, whether actual or constructive.
Kuldeep K Mahato vs. State of Bihar (1998) in this case, both the accused and the
victim, a child, were living in the same village. The accused had allegedly eloped the
victim when he went to a market and raped her. For the elopement, the accused first
compelled the victim to sit in a tempo and kept her silent using a dagger. An FIR was
lodged against the accused under Sections 137(2), 87 and 64 of the BNS, 2023. The
defence argued that the victim of her own free will came with the accused. However,
the prosecution proved how the victim was threatened in tempo by presenting oral
evidence. The Supreme Court upheld the conviction under Section 137(2) of the BNS,
2023.
Ashok Kumar Seth vs. State of Orissa (2003) in this case, the wife left her in-laws
house and started living in her parents' house. Later, the husband, the accused, after
entering his father-in-law's house, took his own son out of the custody of his wife.
The husband was charged5 with Sections 137(2) and 333 of the BNS, 2023. The
Orissa High Court found that the husband was not prohibited specifically by any court
and, thus, held that the accused prima facie 6 is not guilty of the offence of kidnapping
from lawful guardianship as he was a natural guardian to that minor child as per
Hindu law. However, the cognizance of Section 333 of the BNS, 2023 was
maintained.
5
Bharatiya Nyaya Sanhita, 2023 - Bare act with latest amendments
6
Indian Penal Code by K.K. Aziz (Law Publishers, 2016)
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CHAPTER 4
DEFENCES AND LEGAL EXEMPTIONS
While the offence of kidnapping from lawful guardianship is a serious crime, there are
several defences and legal exceptions that can be raised by the accused to challenge
the charge. These defences generally revolve around the issue of consent, the nature
of the guardianship, and the circumstances under which the act occurred. It is
important to understand how these defences are examined by courts to determine
whether they absolve the accused from liability or mitigate the severity of the offence.
One common defence is that of consent from the lawful guardian In some cases, the
accused may argue that the lawful guardian gave consent for the minor to leave their
custody or that the guardian was aware of the minor’s departure. If the guardian's
consent can be proven, the offence of kidnapping would not be applicable. However,
this defence is typically more difficult to establish in cases involving minors, as
minors are presumed to lack the legal capacity to consent to such actions. If it is
established that the guardian consented to the minor's departure, it may serve as a
valid defence against the charge of kidnapping from lawful guardianship.
Another potential defence is mistaken identity. The accused may claim that they
were not the person who took or enticed the individual from the lawful guardian’s
custody, or that they were not aware of the individual’s status as a minor or person
under guardianship. This defence7 can be raised if the accused has a legitimate reason
to believe that the person they took or enticed was not under lawful guardianship, or if
the act was committed under some form of misunderstanding or miscommunication.
A more nuanced legal exception arises in situations where the individual being taken
or enticed is old enough to give valid consent. In certain cases, if the person
removed from the custody of their guardian is above the legal age of consent or is
capable of making their own decisions, the offence of kidnapping from lawful
guardianship may not apply.
7
The Indian Penal Code by Hari Singh Gour (Central Law Agency, 2014)
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CONCLUSION
The offence of kidnapping from lawful guardianship is a serious crime with
significant legal consequences. This crime is defined under Section 137(1)(b) of the
BNS, 2023, and its primary focus is on the unlawful removal or enticing of a minor or
a person under lawful guardianship from their guardian’s care, without the consent of
the guardian. The essential ingredients of this offence include the wrongful taking or
enticing of the person, the presence of lawful guardianship, and the absence of the
guardian’s consent. These elements ensure that the rights and responsibilities of
guardians are protected, particularly in cases involving minors, who are considered
vulnerable and incapable of making decisions regarding their safety and well being.
Consent plays a pivotal role in determining whether an offence has been committed.
While the guardian's consent is crucial, the law recognizes that minors cannot legally
consent to leave the custody of their guardian, thus providing them additional
protection under the law. Case law further elaborates on the legal nuances
surrounding kidnapping from lawful guardianship, offering valuable insights into how
courts interpret and apply the provisions of the law. Ultimately, the offence of
kidnapping from lawful guardianship serves to safeguard the autonomy and rights of
guardians, particularly in the context of vulnerable individuals like minors. The law
strives to strike a balance between the protection of minors and the fair treatment of
accused individuals, ensuring justice is served in a careful and equitable manner.
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BIBLIOGRAPHY
Books and Legal Texts
1. Bharatiya Nyaya Sanhita, 2023 - Bare act with latest amendments
2. Indian Penal Code by Ratanlal & Dhirajlal (LexisNexis, 2020)
3. Indian Penal Code by K.K. Aziz (Law Publishers, 2016)
4. The Indian Penal Code by Hari Singh Gour (Central Law Agency, 2014)
5. Commentary on the Indian Penal Code by Dr. S. K. Awasthi (Universal Law
Publishing, 2017)
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