IPC Section 359 - Kidnapping: Meaning, Types and BNS Section 137
Section 359 of the Indian Penal Code, 1860 classifies kidnapping into two kinds: kidnapping from India and kidnapping from lawful guardianship. Under the Bharatiya Nyaya Sanhita, 2023, the corresponding definitions and punishment are consolidated in Section 137.
Section 359 IPC - Original statutory provision
359. Kidnapping. Kidnapping is of two kinds: kidnapping from India, and kidnapping from lawful guardianship.
This provision categorises the offence; its legal requirements were set out in the succeeding provisions of the IPC. It is important not to confuse this definition with the punishment for kidnapping.
The two kinds of kidnapping under the IPC
1. Kidnapping from India - IPC Section 360
Section 360 provided that whoever conveys any person beyond the limits of India without the consent of that person, or of a person legally authorised to consent on that person's behalf, is said to kidnap that person from India.
Key elements: conveying a person beyond India's limits and absence of legally effective consent. The provision is not confined to children.
2. Kidnapping from lawful guardianship - IPC Section 361
Section 361 addressed taking or enticing a minor male under sixteen years, a minor female under eighteen years, or a person of unsound mind out of the keeping of a lawful guardian without that guardian's consent, subject to its statutory exception. These were the age thresholds in the former IPC wording, not the uniform child threshold in the BNS.
Lawful guardian: A person lawfully entrusted with the care or custody of the child or person concerned. A factual inquiry may be necessary to establish lawful guardianship and whether taking or enticement occurred.
Corresponding current law: BNS Section 137
Section 137(1)(a) - Kidnapping from India: The BNS addresses conveying a person beyond India's limits without that person's consent or the consent of someone legally authorised to give it.
Section 137(1)(b) - Kidnapping from lawful guardianship: The BNS addresses taking or enticing a child or a person of unsound mind out of the keeping of a lawful guardian without the guardian's consent, subject to the statutory exception. Under the BNS, a child means a person below eighteen years of age (BNS Section 2).
Section 137(2) - Punishment: Whoever kidnaps any person from India or from lawful guardianship is punishable with imprisonment of either description for up to seven years and is also liable to fine.
The former IPC definition, detailed provisions and punishment appeared across Sections 359 to 363. BNS Section 137 consolidates the main kidnapping definitions and punishment. Other kidnapping and abduction-related offences are addressed separately in the BNS.
IPC and BNS kidnapping provisions compared
| Subject | Indian Penal Code, 1860 | Bharatiya Nyaya Sanhita, 2023 |
|---|---|---|
| Types of kidnapping | Section 359 | Section 137(1) |
| Kidnapping from India | Section 360 | Section 137(1)(a) |
| Kidnapping from lawful guardianship | Section 361 | Section 137(1)(b) |
| Age in guardianship provision | Male under 16; female under 18; person of unsound mind | Child under 18; person of unsound mind |
| General punishment for kidnapping | Section 363: up to 7 years and fine | Section 137(2): up to 7 years and fine |
Procedure: Arrest, bail, investigation and trial depend on the charged provision and applicable procedural law, including the First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023. Other allegations can change the procedural position.
Practical examples
- Across an international border: A person is conveyed outside India without legally valid consent. The circumstances may fall within kidnapping from India.
- Taking a child from a guardian: A person takes a 15-year-old child away from the keeping of a lawful guardian without that guardian's consent. The elements of kidnapping from lawful guardianship may arise.
- Consent and authority: Whether a person could legally consent, and whether a guardian consented, can be decisive questions.
- Adult moving voluntarily within India: An adult voluntarily travelling within India does not, by that fact alone, satisfy the elements of kidnapping under Section 137. Other offences, if any, must be assessed separately.
Examples are explanatory only; liability depends on the statutory text and proven facts.
Kidnapping and abduction are not identical
Kidnapping concerns the statutory categories explained above. Abduction involves force or deceitful inducement causing a person to move from a place, as defined under the applicable law. The legal elements and punishments of particular abduction-related offences differ. A case should be analysed under the precise provision charged.
Frequently asked questions
What does IPC Section 359 define?
IPC Section 359 identifies two kinds of kidnapping: kidnapping from India and kidnapping from lawful guardianship.
What is the corresponding BNS provision?
BNS Section 137 covers kidnapping and sets out kidnapping from India and kidnapping from lawful guardianship.
Does IPC Section 359 itself prescribe a punishment?
No. IPC Section 359 is a classification provision. Punishment for kidnapping was prescribed in IPC Section 363; BNS Section 137(2) now provides punishment for kidnapping.
Is kidnapping from India restricted to children?
No. Kidnapping from India may concern any person conveyed beyond India without the consent of that person or another person legally authorised to consent.
What age applies to kidnapping from lawful guardianship under BNS?
BNS Section 137(1)(b) refers to a child, meaning a person below eighteen years of age, or a person of unsound mind, taken or enticed from lawful guardianship without the guardian's consent.
What is the punishment under BNS Section 137(2)?
Imprisonment of either description for a term which may extend to seven years, and liability to fine.
Official legal references
Consult India Code for the authoritative texts of the Indian Penal Code, 1860 (Sections 359-363), the Bharatiya Nyaya Sanhita, 2023 (Sections 2 and 137), and the Bharatiya Nagarik Suraksha Sanhita, 2023. The Ministry of Home Affairs publishes information on implementation of the new criminal laws.
This page is general legal information, not advice about an individual investigation or case.