Law of Crimes
Subjects / Law of Crimes / Kidnapping, Abduction and Trafficking
Unit 3 · Offences Affecting Life

Kidnapping, Abduction and Trafficking

Kidnapping (BNS S.137) is of two kinds: from India (conveying beyond limits without consent) and from lawful guardianship (taking a child or person of unsound mind without the guardian's consent); abduction (S.138) is compelling or inducing by force or deceit to go from any place; trafficking (S.143) is recruitment, transport or harbouring for exploitation; the BNS consolidates related offences from S.137 to S.146.

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 2023 Renumbering

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)
**Thakorlal D Vadgama v State of Gujarat (1973)** Supreme Court of India

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

  1. What are the two kinds of kidnapping under S.137?
  2. Is the consent of the minor relevant in kidnapping from lawful guardianship?
  3. What distinguishes abduction from kidnapping?
  4. 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.

Two traps in this problem

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