IPC Section 363: Punishment for Kidnapping and BNS Section 137
Section 363 of the Indian Penal Code, 1860 prescribed punishment for kidnapping from India or from lawful guardianship. For offences committed on or after 1 July 2024, the corresponding general punishment is contained in Section 137(2) of the Bharatiya Nyaya Sanhita, 2023 (BNS).
IPC Section 363: statutory punishment
Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Under the IPC, imprisonment of either description meant rigorous or simple imprisonment. The provision required proof of kidnapping as defined in IPC Sections 360 or 361. Section 363 itself prescribed the punishment rather than a separate definition of kidnapping.
Current law: BNS Section 137
Section 137(1) of the BNS recognises two kinds of kidnapping: kidnapping from India and kidnapping from lawful guardianship. Section 137(2) provides that a person who kidnaps another from India or from lawful guardianship is punishable with imprisonment of either description for a term extending to seven years and shall also be liable to fine.
Kidnapping from India: Under BNS Section 137(1)(a), conveying a person beyond India's limits without that person's consent, or the consent of someone legally authorised to consent on their behalf.
Kidnapping from lawful guardianship: Under BNS Section 137(1)(b), taking or enticing a child or a person of unsound mind out of the keeping of their lawful guardian without that guardian's consent. A lawful guardian includes a person lawfully entrusted with care or custody. The provision includes a qualified good-faith exception relating to a person believing themselves to be the father of a child born outside marriage or entitled to lawful custody; it does not protect acts committed for an immoral or unlawful purpose.
The BNS uses the term child, defined in Section 2(3) as a person below eighteen years of age. This differs from the former IPC Section 361 wording, which referred to a male minor under sixteen years or a female minor under eighteen years.
IPC Section 363 and BNS Section 137: comparison
| Subject | Former IPC | Current BNS |
|---|---|---|
| Definition of kidnapping | Sections 359, 360 and 361 | Section 137(1) |
| General punishment | Section 363 | Section 137(2) |
| Maximum imprisonment | Seven years | Seven years |
| Fine | Also liable to fine | Also liable to fine |
| Guardianship age criterion | Male under 16; female under 18; person of unsound mind | Child under 18; person of unsound mind |
Whether the IPC or BNS applies depends on when the alleged conduct occurred, applicable savings provisions and the facts of the case. The commencement of the BNS does not retrospectively replace the penal law applicable to earlier conduct.
Essential ingredients and practical application
To establish the general offence, the prosecution must prove the elements of kidnapping from India or from lawful guardianship, as relevant. For kidnapping from lawful guardianship, the taking or enticing must be out of the lawful guardian's keeping and without the guardian's consent. The child's apparent willingness does not, by itself, substitute for the guardian's consent.
Where the allegation includes ransom, murder, trafficking, forced marriage or other aggravating circumstances, additional or more specific penal provisions may apply. The facts and applicable statutory elements determine the charge and punishment.
Case-law references under IPC Section 363
The original page lists these historical Supreme Court decisions. They are retained as research references; their applicability to BNS cases depends on the statutory language and facts:
- Shashidhar Purandhar Hegde v. State of Karnataka, 2004 Cri LJ 4677 (SC).
- A. N. Venkatesh v. State of Karnataka, 2005 Cri LJ 3732 (SC).
For judgments and authoritative texts, consult the Supreme Court of India and India Code. Citations should be checked against the full judgment before reliance in legal proceedings.
Frequently asked questions
What is the punishment for kidnapping under IPC Section 363?
Imprisonment of either description up to seven years and liability to fine.
What is the corresponding provision under the BNS?
Section 137(2) of the Bharatiya Nyaya Sanhita, 2023 provides the general punishment for kidnapping from India or lawful guardianship.
Is kidnapping the same as abduction?
No. Abduction is separately defined under BNS Section 138 and formerly under IPC Section 362. Whether an abduction is punishable depends on the additional ingredients of the relevant offence.
Official legislation and resources
Read the India Code official legislation database for the Bharatiya Nyaya Sanhita, 2023 (Act 45 of 2023), the Indian Penal Code, 1860 and their operative texts. See also the Ministry of Home Affairs for commencement notifications and criminal-law implementation materials.
This article provides general legal information and does not substitute for advice on a particular case.