Merely accompanying a minor who left voluntarily is not kidnapping: understanding Section 137 BNS and its limits.

When a minor leaves home on their own and someone simply walks alongside them, is that person guilty of kidnapping? The answer, as this ruling makes clear, is no. Merely accompanying a minor who left voluntarily does not constitute the offence of kidnapping from lawful guardianship under Section 361 of the Indian Penal Code, now Section 137 of the Bharatiya Nyaya Sanhita, 2023. Kidnapping is not a passive act. It requires active taking or enticing of the minor away from their lawful guardian. This ruling draws the critical line between walking with someone and taking them away, and that line has profound consequences for criminal liability.

Facts of the case

The case arose from an incident in which a minor, a girl below the age of 18 years, left her home of her own accord without any compulsion, force, or inducement from the accused. The accused, rather than instigating or encouraging the minor to leave, came to accompany her after she had already decided to go and had taken the initial steps to leave her guardian's home on her own initiative.

The minor's parents or guardians, upon discovering that she had left and that the accused was with her, filed a complaint alleging kidnapping. The police registered an FIR under Section 137 BNS, and the accused was arrested and prosecuted for kidnapping the minor from her lawful guardianship without the consent of her parents.

The central factual question before the court was whether the accused had taken or enticed the minor away from her guardian's keeping, or whether the minor had left voluntarily on her own initiative and the accused had merely accompanied her thereafter. If the latter was true, the prosecution's case under Section 361 IPC would fail at its most basic requirement, because the act of taking or enticing is the very foundation of the offence of kidnapping from lawful guardianship. The matter was challenged through the legal process and eventually came before the higher court for a definitive ruling on this precise point.

Issue before the court

1. Whether the act of accompanying a minor who had voluntarily left her guardian's home, without any prior instigation, inducement, or enticing by the accused, constitutes the offence of kidnapping from lawful guardianship under Section 137 BNS.

2. What was the meaning of the words taking and enticing as used in Section 137 BNS. Do these words cover a situation where the minor left entirely on her own initiative and the accused simply walked with her after the fact? Or do they require some active conduct on the part of the accused that caused or contributed to the minor's departure from her guardian's custody?

3. Whether the voluntary act of the minor in leaving home, even though her consent is legally irrelevant to the offence of kidnapping, has any bearing on the question of whether the accused can be said to have taken or enticed her. If the minor acted entirely on her own volition, can the accused, who played no role in that decision, still be said to have taken her away?

Arguments before the court

The prosecution argued that the offence of kidnapping under Section 137 BNS is complete the moment a minor is taken away from the lawful guardian's keeping without the guardian's consent. The consent of the minor is expressly declared irrelevant by the explanation to Section 137. The accused was found in the company of the minor, away from her guardian's home, without the guardian's consent. This alone, the prosecution contended, is sufficient to establish that the accused had taken the minor away within the meaning of Section 137. The law does not require the prosecution to prove that the accused physically dragged or forced the minor. Even passive accompaniment that perpetuates the minor's separation from the guardian can constitute taking away under the section.

The accused argued that taking and enticing under Section 137 BNS are active words that require some positive conduct on the part of the accused that caused or materially contributed to the minor's departure from her guardian's custody. Where the minor left entirely of her own free will and the accused played no role whatsoever in that decision, the accused cannot be said to have taken or enticed her. The accused relied on the landmark decision in S. Varadarajan vs State of Madras (1965), where the Supreme Court had held that where a minor herself takes the initiative to leave her guardian and the accused does no more than accompany her, the accused is not guilty of kidnapping. The voluntary act of the minor, while irrelevant to her own consent, is highly relevant to the question of whether the accused's conduct amounts to taking or enticing.

Read Also: Ishita Bhardwaj v. State of Rajasthan,2026

Analysis of the court

The court began by carefully examining the language of Section 137 BNS. The provision states that whoever takes or entices any minor under 16 years of age if a male, or under 18 years of age if a female, out of the keeping of the lawful guardian without the consent of such guardian is said to kidnap such minor from lawful guardianship. The court focused on the two operative words: takes and entices.

The court held that both taking and enticing are active words that connote some positive or causal role played by the accused in the minor's departure from the guardian's keeping. Taking implies an active physical act by which the accused causes the minor to be removed from the guardian's custody. Enticing implies some inducement, allurement, or persuasion by which the accused causes the minor to leave the guardian's home. Neither word can be stretched to cover a situation where the minor left entirely on her own initiative and the accused simply accompanied her thereafter.

The court drew extensively on the Supreme Court's reasoning in S. Varadarajan vs State of Madras (1965), which remains the leading case on this point. In Varadarajan, the Supreme Court had held that where a girl who has attained understanding about what is good or bad for her leaves her guardian voluntarily and the accused does no more than provide accompaniment, it cannot be said that the accused took her away. The initiative for leaving must be shown to have come from the accused, not from the minor herself, for the offence of taking to be made out.

The court also addressed the argument that the minor's consent is irrelevant under Section 137 and therefore the accused's liability should not depend on the minor's voluntary act. The court clarified that these are two separate questions. The irrelevance of the minor's consent goes to the point that even if the minor willingly went with the accused, the accused is still guilty if they took or enticed her. But if the minor took the initiative herself and there was no taking or enticing by the accused at all, then the irrelevance of consent does not come into play because the foundational act of taking or enticing was never established in the first place.

The court further noted that the offence of kidnapping is designed to protect the guardian's right to custody and care of the minor, not to punish every person who happens to be found with a minor who has left home voluntarily. Extending the offence to cover mere accompaniment would criminalise the conduct of people who played no role in the minor leaving and had no intention of separating the minor from the guardian's protection. That would be a reading of Section 137 far beyond its text and purpose.

Finally, the court considered the question of intention. While kidnapping under Section 361 does not require proof of any specific intention beyond the act of taking or enticing, this does not mean intention is wholly irrelevant. Where the accused had no role in inducing the minor to leave and did not take any active step to separate the minor from guardianship, there is simply no actus reus to which the question of intention could attach. Without the act of taking or enticing, there is no offence, regardless of what the accused may or may not have intended.

Concluding Remark

This ruling is an important safeguard against the misuse of the kidnapping provision in cases where romantic relationships between young people are involved and families, unwilling to accept their child's choices, resort to criminal complaints to punish the accompanying person. While the law rightly protects minors from being taken away from their guardians without consent, it does not and must not extend to situations where the minor is the author of their own departure.