Kidnapping from lawful guardianship
Section 361 of the Indian Penal Code, 1860 deals with kidnapping from lawful guardianship. Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such mino The Act came into force on 01 Jan 1862. Repealed by section 358 of the Bharatiya Nyaya Sanhita, 2023 (45 of 2023) with effect from 1 July 2024, but conduct before that date is still charged, tried and appealed under it.
Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor
or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation.-The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.
Exception.-This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.
Section 361, The Indian Penal Code, 1860 (Act 45 of 1860).
Now in the Bharatiya Nyaya Sanhita
BNS 137 Kidnapping Close, with changes 67%
Measured by comparing the text of the two provisions, not taken from an official correspondence table — there is no machine-readable one. See both texts side by side before relying on it.
Both regimes are live. The repealed enactment still governs what happened while it was in force. We never redirect one to the other.
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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Riya vs State of U.p.
Court's Decision & Legal Precedent
The date of birth as recorded in the High School Certificate, unless and until rebutted by the issuing authority, holds good in the eye of law and constitutes conclusive proof for determining the victim's age in criminal proceedings. When a victim's age is material to the constitution of an offence (such as kidnapping under Section 363 IPC), the documentary evidence of date of birth from official records cannot be set aside merely on the basis of the accused's assertion or the victim's subsequent marriage. The burden lies on the party challenging the recorded date of birth to produce cogent and conclusive proof of rebuttal.
On this section: Definition of kidnapping - enticing away a person from lawful guardianship when the person is below 18 years of age
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Anand Raj vs The Inspector of Police
Court's Decision & Legal Precedent
In cases involving sexual offences against minors under POCSO Act, bail may be granted when: (a) the victim's own statement recorded under Section 164 Cr.P.C does not corroborate the prosecution's allegations; (b) the accused has undergone substantial pre-trial custody; and (c) the investigation is nearing completion. The absence of incriminating evidence in the victim's statement is a significant factor in bail consideration, even in serious offences like POCSO violations.
On this section: Charge of abduction - accused charged with abducting the victim girl
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Mokalla Dinesh vs State of Telangana
Court's Decision & Legal Precedent
In cases involving sexual offences against minors where the victim is in lawful guardianship and the investigation is incomplete, bail should be denied if there exists a prima facie case of offences under Section 366-A and 376(2)(n) IPC, particularly when the accused and victim are closely related, as this creates a risk of interference with the investigation. The duration of judicial custody alone is not a sufficient ground for bail when the investigation is still ongoing and other witnesses remain to be examined.
On this section: Kidnapping from lawful guardianship - defined as taking or enticing any minor under 16 years (if male) or under 18 years (if female) out of the keeping of lawful guardian without consent; applied to establish that the victim was in lawful custody of her parents
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Judgments citing this section
These may be obiter dicta or a precedent, for you to study. These are the judgments where this section is quoted.
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… of conviction and sentence passed by the learned Trial Judge is highly erroneous and hence, the same is liable to be set-aside as the same is against the established principle of law; the learned Trial Judge has gravely erred in coming to the conclusion that the appellants have committed the offence defined under Section 361 of Indian Penal Code, solely on the basis of assumption that the victim was below the age of 18 years as on the date of alleged offence. He further submits that when the learned Trial Judge acquitted the appellants under Section 366 of the Indian Penal Code, the question of appellants committing the offence …
Questions about Section 361
What have the courts held on Section 361 of the Indian Penal Code?
Riya vs State of U.p. (05 Nov 2020) is the leading judgment on this section among those set out below: Definition of kidnapping - enticing away a person from lawful guardianship when the person is below 18 years of age. Another 2 judgments on this section are set out below. They run from 2018 to 2020.
How do I find court cases under Section 361 of the Indian Penal Code?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: IPC 361, section 361 IPC, section 361 of the Indian Penal Code. People searching for it also type ipc 361 in bns and ipc 361 punishment. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 3 reported judgments on this section are set out on this page, beginning with Riya vs State of U.p. (05 Nov 2020).
What should I read with Section 361 of the Indian Penal Code, and has it changed?
For anything done on or after 1 July 2024 the provision to read is BNS 137 (Kidnapping), which replaced it; conduct before that date is still charged, tried and appealed under this section.
When did Section 361 of the Indian Penal Code come into force?
Section 361 of the Indian Penal Code, cited as IPC 361, came into force on 01 Jan 1862, having been enacted on 06 Oct 1860. It is no longer in force.
Other sections of this Act
- 499. Defamation1512 words
- 464. Making a false document1223 words
- 300. Murder1172 words
- 378. Theft980 words
- 108. Abettor745 words
- 403. Dishonest misappropriation of property727 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Recovered from the consolidated text published by India Code (item 7b7d4fe6-206b-4e33-81f1-b98b018acaf6). This page is not a substitute for legal advice.