This note covers the three related offences of kidnapping (S.137), abduction (S.138) and trafficking (S.143), together with their aggravated forms. They protect personal liberty by criminalising the act of taking or moving a person away from safety, whether by overcoming consent or by exploiting vulnerability.
BNS S.137 = IPC S.359/S.360/S.361/S.363 (kidnapping definition + punishment consolidated). BNS S.138 = IPC S.362 (abduction). BNS S.139 = IPC S.363A (kidnapping or maiming for begging). BNS S.140 = IPC S.364/364A/365/366A/367/368 (aggravated kidnapping consolidated). BNS S.143 = IPC S.370 (trafficking). BNS S.144 = IPC S.370A (exploitation of trafficked person).
Kidnapping (S.137)
Two Kinds
| Kind | Definition | Consent of |
|---|---|---|
| From India (S.137(1)(a)) | Conveying any person beyond the limits of India without consent | The person conveyed, or the person legally authorised to consent on his behalf |
| From lawful guardianship (S.137(1)(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 lawful guardian |
Key Points
- "Lawful guardian" includes any person lawfully entrusted with care or custody.
- Exception: A person who in good faith believes himself to be the father of an illegitimate child, or who believes himself entitled to custody, is not liable unless the act is for an immoral or unlawful purpose.
- The age of the child matters: a minor (under 18 for male, under 18 for female under BNS where "child" is defined as under 18 in S.2(3)).
- Consent of the minor is irrelevant; only the guardian's consent matters.
Punishment (S.137(2))
Up to 7 years + fine.
Abduction (S.138)
"Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person."
Distinction from Kidnapping
| Basis | Kidnapping | Abduction |
|---|---|---|
| Victim | Child or person of unsound mind (from guardianship); any person (from India) | Any person |
| Means | Taking or enticing (no force necessary) | Force or deceit essential |
| Consent | Of the guardian (victim's consent irrelevant) | Of the victim (vitiated by force or deceit) |
| Continuing offence | No: completed when the person is taken | Yes: continues as long as force or deceit subsists |
| Punishable by itself | Yes (S.137(2)) | Not punishable as a standalone offence; punished through the purpose (S.140) |
Facts: A minor girl was taken from her father's keeping with her own consent but without the father's consent.
Issue: Whether the consent of the minor defeats the charge of kidnapping from lawful guardianship.
Held: The consent of the minor is irrelevant. Kidnapping from lawful guardianship requires only the absence of the guardian's consent. The minor cannot consent to her own removal from guardianship.
Relevance: The standard authority on the irrelevance of the minor's consent in kidnapping from guardianship.
Aggravated Kidnapping and Abduction (S.139, S.140)
| Section | Purpose / Aggravation | Punishment |
|---|---|---|
| S.139(1) | Kidnapping or obtaining custody of a child to employ for begging | 10 years to life + fine |
| S.139(2) | Maiming a child for begging | 20 years to life (remainder of natural life) + fine |
| S.140(1) | Kidnapping or abducting to murder or so as to be put in danger of being murdered | Life or up to 10 years + fine |
| S.140(2) | Kidnapping or abducting for ransom, or threatening to kill | Death, or life + fine |
| S.140(3) | Kidnapping or abducting to wrongfully confine | Up to 7 years + fine |
| S.140(4) | Kidnapping or abducting to subject to grievous hurt, slavery, or unnatural lust | Up to 10 years + fine |
Trafficking of Person (S.143)
Definition (S.143(1))
Whoever, for the purpose of exploitation, recruits, transports, harbours, transfers, or receives a person by:
- (a) threats, (b) force or coercion, (c) abduction, (d) fraud or deception, (e) abuse of power, (f) inducement including payments to achieve consent of a person having control,
commits the offence of trafficking.
"Exploitation" includes: physical exploitation, sexual exploitation, slavery or practices similar to slavery, servitude, beggary, or forced removal of organs.
Consent of the victim is immaterial (Explanation 2).
Punishment (S.143(2) to S.143(7))
| Sub-section | Situation | Punishment |
|---|---|---|
| (2) | Trafficking (basic) | 7 to 10 years RI + fine |
| (3) | More than one person trafficked | 10 years to life + fine |
| (4) | Trafficking of a child | 10 years to life + fine |
| (5) | More than one child trafficked | 14 years to life + fine |
| (6) | Repeat offence of trafficking a child | Life (remainder) + fine |
| (7) | Public servant or police officer involved | Life (remainder) + fine |
Exploitation of a Trafficked Person (S.144)
| Sub-section | Situation | Punishment |
|---|---|---|
| (1) | Engaging a trafficked child for sexual exploitation | 5 to 10 years RI + fine |
| (2) | Engaging a trafficked person (adult) for sexual exploitation | 3 to 7 years RI + fine |
Forced Labour and Slavery (S.145, S.146)
| Section | Offence | Punishment |
|---|---|---|
| S.145 | Habitual dealing in slaves | Life or up to 10 years + fine |
| S.146 | Unlawful compulsory labour | Up to 1 year, or fine, or both |
Recall Check
- What are the two kinds of kidnapping under S.137?
- Is the consent of the minor relevant in kidnapping from lawful guardianship?
- What distinguishes abduction from kidnapping?
- What is the maximum punishment for kidnapping for ransom?
Key Cases
Thakorlal D Vadgama v State of Gujarat (1973) Thakorlal D Vadgama v State of Gujarat 1973
Issue: Whether the minor's consent defeats kidnapping from lawful guardianship.
Rule: The minor's consent is irrelevant; only the guardian's consent matters.
Held: Conviction for kidnapping upheld despite the minor's willing departure.
Distinctions
| Basis | Kidnapping (S.137) | Abduction (S.138) |
|---|---|---|
| Victim | Child / person of unsound mind (from guardianship); any person (from India) | Any person |
| Means | Taking or enticing (force not needed) | Force or deceit essential |
| Consent relevant | Guardian's consent only | Victim's consent (vitiated) |
| Standalone offence | Yes (7 years) | No; punished through the purpose (S.140) |
| Continuing | No | Yes (as long as force/deceit subsists) |
| Basis | Kidnapping from India (S.137(1)(a)) | Kidnapping from Lawful Guardianship (S.137(1)(b)) |
|---|---|---|
| Victim | Any person | Child or person of unsound mind |
| What is done | Conveyed beyond the limits of India | Taken or enticed out of the keeping of the lawful guardian |
| Consent needed | Of the person or authorised person | Of the lawful guardian |
| Territorial element | Crossing India's boundary | Within India |
| Basis | Kidnapping/Abduction (S.137 to S.142) | Trafficking (S.143) |
|---|---|---|
| Focus | Taking the person away | Recruitment, transport, harbouring for exploitation |
| Means | Taking, enticing, force, deceit | Threats, force, coercion, abduction, fraud, abuse of power, inducement |
| Purpose | May or may not be specified | Always for exploitation (sexual, slavery, begging, organ removal) |
| Consent | Relevant for abduction | Irrelevant (Explanation 2 to S.143) |
| Punishment | 7 years (basic kidnapping) | 7 to life (basic trafficking) |
Flashcards
What are the two kinds of kidnapping under S.137?
(1) From India: conveying beyond limits without consent. (2) From lawful guardianship: taking a child or person of unsound mind without the guardian's consent.
Is the minor's consent relevant in kidnapping from guardianship?
No. Only the guardian's consent matters (Thakorlal Vadgama, 1973).
What is the essential difference between kidnapping and abduction?
Kidnapping needs no force (taking or enticing suffices, of a child or incapable person). Abduction requires force or deceit and may be of any person.
What is "trafficking" under S.143?
Recruitment, transport, harbouring, transfer or receipt of a person for exploitation, by threats, force, coercion, abduction, fraud, abuse of power or inducement.
Is the victim's consent a defence to trafficking?
No. Explanation 2 to S.143 makes consent immaterial.
What is the maximum punishment for kidnapping for ransom (S.140(2))?
Death, or imprisonment for life plus fine.
Exam Scenario
Problem: Maya (aged 16) willingly leaves her father's home with her boyfriend Raj (aged 22). Raj tells her father he has taken her to another city. Her father files a complaint of kidnapping. Separately, a gang recruits women from villages by promising them jobs in the city, then forces them into domestic servitude and takes their wages. Advise on both.
Step 1: Test Raj under S.137(1)(b)
| Element | Application |
|---|---|
| Child (under 18) | Maya is 16. She is a child under S.2(3) |
| Taken out of the keeping of the lawful guardian | Yes: she has left her father's home |
| Without the guardian's consent | Her father did not consent; he filed a complaint |
| Maya's own consent | Irrelevant (Thakorlal Vadgama, 1973) |
Raj is guilty of kidnapping from lawful guardianship under S.137(1)(b). Punishment: up to 7 years + fine.
Step 2: Test the gang under S.143 (trafficking)
| Element of S.143(1) | On these facts |
|---|---|
| Recruitment | Yes: recruiting women from villages |
| By fraud or deception | Yes: promising jobs that do not exist |
| For the purpose of exploitation | Yes: domestic servitude + taking wages = forced labour (exploitation) |
| Consent of victims | Immaterial (Explanation 2) |
The gang commits trafficking under S.143. Since multiple persons are trafficked, S.143(3) applies: 10 years to life + fine.
If any victim is a child (under 18), S.143(4) applies: 10 years to life + fine. If multiple children, S.143(5): 14 years to life + fine.
Maya's willing departure does not save Raj. The minor's consent is irrelevant for kidnapping from lawful guardianship. This is the standard trap and is settled by Thakorlal Vadgama.
Promise of a job followed by forced labour is trafficking, not just cheating. The purpose of exploitation (servitude, taking wages) makes it S.143, which carries a far higher punishment than cheating (S.318: up to 3 years). Always check whether the facts disclose exploitation.
Conclusion. Raj: kidnapping under S.137 (up to 7 years). The gang: trafficking under S.143(3) (10 years to life).
See Also
- Sexual Offences against Women : S.87 (kidnapping or abducting a woman to compel marriage) is the overlap offence.
- Offences against Children : S.95 to S.99 cover hiring, procuring and selling children.
- Wrongful Restraint and Wrongful Confinement : where the person is held in place rather than taken away.