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A minor girl, leaves her parent’s house because of ill treatment and lives with, B her friend. Can he be prosecuted for kidnapping?

This article is written by Shrasti Singh, a student of Shri Ramswaroop Memorial University, Lucknow

Introduction

Kidnapping is known as “child stealing” which is combination of two words: kid means child and napping means stealing. Kidnapping is a criminal offence against lawful guardians. It means confine a person against his/her will by force, threat or deceit. Section 359-363 of the Indian Penal Code 1860, provide provision for the kidnapping offence. Usually, the kidnapping is done for various purpose like ransom, begging, illicit intercourse, marriage prostitution, revenge, slavery, murder, and political purpose and for other purpose. Kidnapping comes under category of the strict liability. Intention of the accused is not essential ingredient of kidnapping. Kidnapping is an aggravated form of unlawful confinement. It is not continuing offence unlike abduction under section 362. It is complete as soon as the minor or person of unsound mind is removed from lawful guardianship.

 In law, there are two types of kidnapping – kidnapping from India and kidnapping from lawful guardianship given under section 359 of I.P.C. sometime they can overlap each other.

Kidnapping from lawful guardianship

Kidnapping from the lawful guardian is a criminal offence under section 361 of the Indian Penal Code 1860. For committing this crime, there are four important element which are required to be completed-

  1. The accused must take or entice away a minor or unsound person,
  2. Such minor should be of age 16 year old for male and 18 year old for female;
  3. Accused is taking and enticing must be out to keep away from lawful guardianship of such minor and unsound person.
  4. Accused is taking or enticing the minor without the consent of the lawful guardianship.

Here Lawful guardianship means any person lawfully entrusted with the care and custody of such minor or unsound person.

EXCEPTION OF THE SECTION 361 OF I.P.C.

However this section have two exception –

  1. When the accused in good faith believe himself to be the father of an illegitimate child or;
  2. When the accused in good faith believe himself to be entitled to lawful custody of such child, unless such 

Illustration-

 A minor girl Kajal is of age of 13 years, living under the lawful guardianship of her father Manoj. Rama his neighbor convinces him to accompany him to his house against the consent of his mother. According to Section 361, ‘rama’ has committed the offence of Kidnapping from lawful guardianship as he is taking Kajal away from her father against her father’s consent.

OBJECT OF SECTION 361

 The object of this section is to protect the minor children and unsound person from being seduced for improper purposes or being exploited and also used to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards.

Meaning Of Taking, Enticing and Keeping Used In This Section

  • ‘Taking’ means letting go, to escort or take someone into possession with or without using force. In order to prove the crime the prosecution have to show the accused took active part in the minor’s leaving the lawful guardianship custody and taking shelter with him. Taking does not require to be forceful, it may be persuasive and immaterial of the minor’s consent. Persuasion by the accused which creates a willingness on the part of minor to be taken out of the keeping of the lawful guardian would be sufficient but if the minor without any inducement goes herself out of the keeping of lawful guardianship and the accused person accompanies her then in such a situation he shall not be liable for the offence. Taking doesn’t need to be a single act but total series of acts could together constitute the process of taking; the act is complete only when the minor is out of his legal possession of his guardians. When the accused takes the minor away with him, the act of taking is complete whether he was willing or not.
  • Whereas ‘Enticing’ means inducing a minor to go his own accord to the accused. It is exciting hope or desire in a person to be taken away. Enticement is completely dependent upon the mental state of the person when the inducement happens. It is not confined to a single form of allurement and any act which is enough to allure a minor girl is enough to constitute allurement in enticement, the kidnapper convinces the minor, through allurement, to do something he/she would otherwise not do. Force or fraud is not necessary to constitute enticement or taking away. The minor’s mental attitude is relevant in the enticement. The promise of marriage made to the minor girl for leaving the lawful guardian’s house shall be treated as an enticement. The distance to which minor is being taken is also immaterial. If the accused removes the keeping of the legal guardian without the guardian’s consent and returns to his house after a minor return sometime, the accused shall still be held liable for the offence.
  • The word ‘keeping’ in the context connotes the ideas of charge, protection, control and maintenance, further the guardian’s charge and control-appears to be compatible with the independence of action and movement in the minor, the guardian’s protection and control of the minor being available, whenever necessity arises. The minor does not require to be in physical control of guardian. But so long as guardian is well known about the child’s whereabouts and minor’s movement is controlled, he is said to be in the guardian‘s care. Thus, the child is kidnapped when a child is taken to such an area outside the circle where the guardian no longer knows the child’s whereabouts nor any control over his moves. A minor said to be not in the keeping or control guardianship if minor was driven away from the parental home or minor voluntarily leave the control of the guardian on the account of ill-treatment. Orphan cannot be kidnapped as he is not in the custody of lawful guardianship.

While reading the text of the section, we get to known that the consent of the minor who is taken or enticed is fully immaterial. Here only the consent of the lawful guardianship would be sufficient to attract the section. As child does not competent to give valid consent in law. The consent of the guardian must be free consent and not taken under influence or fraud. It should also be noted that kidnapping is a strict liability offence i.e. the accused’s intention is immaterial. Thus, even if the accused took a minor out of the guardian’s keeping for a good cause, he is still liable for the kidnapping offence. For eg in the case of R vs Prince, the boy take out the girl from her lawful guardianship believing in good belief she is 18 year old though she was originally 16 year old. The court convicted him for kidnapping as the accused intention is immaterial in the offence of the kidnapping.

Punishment for kidnapping

Section 363 of the Indian Penal Code provides the provision for the punishment of both kinds of kidnapping (Kidnapping from India and Kidnapping from lawful guardianship) as

  • Imprisonment of either description (simple imprisonment or rigorous imprisonment) which can extend up to seven years, or Fine.

In the case of the S. Varadarajan v. State of Madras, the difference between taking and allowing minor to accompany a person explained. The fact of the case was, one father named S. Natarajan lived in Nungambakkam with his wife and two daughters name Rama and Savitri. Both were in college. Savitri was a second year student pursuing B.sc course.

Savitri became friendly with the neighbor S. Varadarajan who was accused in the case. The older sister Rama had seen many time both of them talking and meeting with each other. Rama confront Savitri regarding her behavior and intention. Savitri told her that she loved him and wanted to marry her. Rama narrated the story of love affair to her father and told her intention of marriage. Knowing about everything, S. Natarajan took Savitri to his relative home so that she can stay away from the accused.

On 1st October, Savitri leaved the home of relative and telephoned her lover to meet her at certain place and from there they both go away to Mylapore city. They went to the marriage registration office along with their friend Sami to be witnessed. They got married there. On the same day the family of Savitri got to know that she was missing. S.Natarajan filed a missing complaint of her minor daughter in police Station.

After doing police investigation, police caught them in Tanjore. The madras High court sentenced him one year rigorous punishment to Varadarajan founding guilty for kidnapping under section 363. Then the accused not satisfied with the judgement of the high court of Madras appealed in Supreme Court by using special leave. 

Judgement of the court

The Supreme Court made the observation that she left her relative house willing. The accused does not suggest her to leave the house. She was the first who urge to marry Varadarajan.  Savitri voluntarily accompanied him and the law did not cast him the duty of taking her back to her father’s house and tell her not to accompany him.

The court opined that Savitri was at verge of attaining the age of maturity. She was well educated and she was competent to know what is right or wrong for her. She called the lover and also choose the meeting point. There was no pre- planning. S.Varadarajan   had neither administered threat nor persuaded in any form while leaving the house or during marriage in register office. It was done willing   to fulfill the desire of Savitri.

The court observed that the one essential element of kidnapping is not fulfilled that to take or entice away minor or unsound person from lawful guardianship. She voluntarily left. Thus, the court held that no offence under section 363 has been established against the accused. He was acquitted in the case and the judgement of the high court was set aside.

In the case of Thakorilal D Vadgama vs. State of Gujarat (Parker Pen Case), Thakorilal D Vadgama, was an industrialist who had a factory at Bunder Road for manufacturing oil engines and adjoining the factory was his residential bungalow. During the bombardment of Jamnagar by Pakistan in 1965, Mohini’s parents came to reside temporarily at Bhrol near Jamnagar. The appellant came to be introduced to that family and on December 18, 1965, which was Mohini’s birth-day, the appellant presented her a parker pen. Mohini was a 14 year old girl going to School. The accused make a relationship with that family so strong that he also take them out on the trip and spend lavishly on hotel in Ahmedabad, Bombay, Mahabaleshwar and Mount Abu.  He was actually found by the side of Mohini in Mohini’s bed by Mohini’s mother at Mount Abu. She objected their relationship and told her husband.

 Mohini composed letters to him about rebuking of her parent and beating and also communicating her craving to go out. The accused after knowing the intention of the girl took a chance to take out girl from her lawful guardianship. He guaranteed her that he will give recompense to her on January 16, 1967 and he will always keep her permanently in his house. Mohini leaved her parent’s home and went to kishorilal’s place. . They made sexual relation. She remained in his garage and he gave her clothes, food and gave rupees 250.

On 17 January 1967 police came to appellant Bungalow. Mohini flee from the secondary passage and went to side of the road where she found by police. Mohini’s garments were found from his car. The appellant was charged under section 361, 366 and 376 of IPC for kidnapping and rape. 

Decision of the Court

The trial court convict him for both kidnapping and rape under section 366 and 376 of I.P.C.  In appeal, the Gujarat High Court acquitted him against the offence of rape but convicted him for kidnapping. Against the decision of high court appellant filed the second appeal in Supreme Court. 

The Supreme Court observed that the word ‘entice’ means ‘to involve the idea of inducement or allurement’ by giving rise to hope and desire in the other. If the minor leaves her parents’ house influenced by any promise, offer or inducement emanating from the accused then the accused will be guilty of an offence as defined in section 361 of IPC. The court observed that “if he had at the former stage, persuade and ask for her in any way possible to leave her lawful guardianship (parent’s house), by conveying or indicating or encouraging suggestion that he would give him a home to stay permanently or marry her, then the mere circumstance that the act was not instant cause of her leaving the father’s home would not valid defence for the appellant and he cannot plead that the girl had left the house voluntarily.

 Thus, Supreme Court upheld the decision of High Court as appellant at earlier age used allurement and induce her to leave the parental home and going to his house. Thus, it is prime facie difficult for guilty party to plead for innocence. 

In the case of State of Haryana v. Raja Ram, the court give the meaning of keeping. The fact of the case was that a girl Santosh Rani daughter of Narain Das, was 14 year old. Jai Narain (32Years) visited the house of Narain Das for treatment of his sons and he had fallen in love of Santosh Rani. Love started to culminate slowly and slowly. He seduce her to go and live with him. Narain Das opposed and prohibited entry of Jai Narain in his house. The accused Raja Ram act as a Messenger of Jai Narain. In persuasion of Raja Ram, Santosh Rani leaved her house on the night between April 4 and 5 and went along with raja Ram to meet Jai Narain. Finally she met with Jai Narain and both enjoyed their life. On April 13, 1968 at about 7 a.m. Ram Shah, S.H.O. along with three other persons and Narain Das, saw Jai Narain and Santosh Rani coming from the side of Dera Waswa Ram. As they reached near Dera Ganga Singh, Narain Das identified his daughter and Jai Narain, accused, was taken into custody. The prosecutrix had a jhola which contained one suit and a shawl and two chunis which were taken into possession. The salwar of the, prosecutrix appeared to have on it stains of semen. 

Trial court convicted both Jai Narain and Raja Ram. But they appealed against the judgement in the High Court of Punjab & Haryana. A learned single Judge of that Court dismissed the appeal of Jai Narain maintaining his conviction and sentence but acquitted the respondent Raja Ram of the charge under Section 366 IPC on the basis he does not persuade or induce to leave her parental home. It is against the order of the respondent‘s acquittals that the State of Haryana has appealed to Supreme Court.

The Supreme Court allowed the appeal and set aside the order of the High Court that acquit Raja Ram and restored the earlier punishment. As the respondent’s action was the proximate cause of the prosecutrix going out of the keeping of her father and indeed but for Raja Ram’s persuasive offer to take her to Jai Narain the prosecutrix would not have gone out of the keeping of her father who was her lawful guardian, as she actually did. Raja Ram actively participated in the formation of the intention of the prosecutrix to leave her father’s house.

In the case of Biseswar Misra v. The King, the court observed that just passive consent for giving shelter to the minor by accused does not amount to taking or seducing the minor, but when the accused actively bring about her stay in the house by using inducement or allurement which affect the minor mind  is equivalent to kidnapping under Section 361 of the Indian Penal Code. 

 In the case of Gunder Singh, the minor girl had run away from parent’s home in consequence of ill- treatment and meet with ‘A’ on the road, had agreed to take service as a coolie and went with him. In this case there was no kidnapping.

Conclusion

The Answer of above question is no.‘A ’minor girl, leaves her parent’s house because of ill treatment and lives with her friend. He cannot be prosecuted for the offence of kidnapping because he does not fulfill all the essential element of kidnapping. He does not entice or take away the minor girl from the lawful guardianship. He does not allure nor induce her to leave her parental home and live with her. A minor girl voluntarily leaves her parent’s home because of ill treatment and take shelter in her friend house. Here, using the precedent of above decision and observation of Supreme Court we can say that her friend cannot be convicted under section 363 of I.P.C. for the offence of kidnapping from lawful guardianship. 

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