Ingredients of Kidnapping from Lawful Guardianship in India
(2) That the person kidnapped must be —
(a) Under 16 years of age, if male, and
(b) Under 18 years of age, if a female; or
(c) A person of unsound mind;
(3) That taking or enticing must be out of the keeping of lawful guardian of the minor or person of unsound mind; and
(4) That the taking or enticing was without the consent of the legal guardian.
(1) Taking or enticing:
The word ‘take’ means to cause to go, to escort or to get into possession. The taking contemplated by the section is the physical taking or leading away. Mere passive consent on the part of a person to give shelter to a married minor girl does not amount to taking or enticing of her.
The word “taking” as used in this section does not also mean continuous or a continuing act. The taking which constitutes an offence is completed as soon as the minor is removed from the keeping of lawful guardian.
The expression “takes” in Section 361 does not necessarily connote “taking by the force” and it is not necessary in such cases that force, actual or constructive, should be used as the only means of causing a person to go.
The influence of the accused instigated the minor girl to have the protection of her lawful guardian. Such influence was definitely there when she left with him and went to his house and from place to place thereafter. It constitutes “taking” within the meaning of the word as used in Section 361, I.P.C.
The word “takes” implies absence of the desire of the person taken. It is against that where the minor leaves her father’s protection knowing or having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian.
Section 361 not only intends to safeguard the rights of the guardians but also to punish those who violate or infringe the rights of the guardians to keep their wards under their control. The fact that the minor girl had agreed to accompany the accused does not take the case out of the purview of the offence of kidnapping from lawful guardianship as contemplated by Section 361, I.P.C.
On a plain reading of the section the consent of the minor who is taken away is wholly immaterial. It is only the guardian’s consent which takes the case out of its purview. It is not necessary that taking or enticing must be by means of force or fraud, persuasion which might create willingness to be taken out of lawful guardianship would amount to such “taking”.
The law does not permit a girl of easy virtues to be taken away from her lawful guardianship without the consent of the parents.
“Enticing” is one mode of taking a minor. It is inducing the minor to go of her own accord with the kidnapper. Anything which is likely to allure the minor will do it. It can also be offer of sexual intercourse.
The offence may be committed without assault, wrongful restraint or wrongful confinement. The fact that such minor or insane person willingly or with consent stays with the offender shall not mitigate the offence.
“Taking” in this section necessarily involves bodily removal. The mere leading of a not unwilling child would constitute such “taking”. “In enticing” the conduct need not be deceitful, whether promises of the present or the common blandishments of the lover or the mere placing of ladder under the window at the request of a minor, whereby the person kidnapped is induced or is persuaded of his or her own accord to go to the kidnapper.
One does not entice another unless the latter attempted to do a thing which she or he would not otherwise do. The accused who takes the girl with him, is “taking” her out of the father’s custody within the meaning of Section 361.
(2) Person kidnapped:
The offence of kidnapping may be committed in respect of (a) a male who is below 16 years of age: (b) a female who is below 18 years of age; and (c) a person of unsound mind. Even the fact that the girl deceived the accused by overstating her age would be no defence.
Where the accused is charged with an offence of kidnapping, the girl’s age is a material point because unless it is shown that she was below 18 years of age at the relevant time, there could be no case of kidnapping.
The prosecution must prove that she was below 18 years of age. If the person kidnapped is a male he must be below 16 years of age. An X-ray-ossification test is a surer basis for determining the age of an individual than the opinion of a medical expert but it is not an infallible or accurate test.
(3) Out of the keeping of the lawful guardian:
There is difference between “lawful guardian” and “legal guardian”. A guardian may be lawful without being legal. The lawful guardian is one to whom the care and custody of a child is lawfully entrusted under a lawful proceeding in lawful manner.
The concept of lawful guardian and legal guardian the illustration is quite correct when a father of a girl sends her to school with his servant or friend, the servant or friend is the lawful guardian while the father is a legal guardian.
Kidnapping is an offence against guardianship and the moment the minor is taken or enticed away out of the keeping of the “lawful guardianship” the offence is complete and is per se punishable. If a minor girl leaves voluntarily or stays out of her house, the lawful guardianship continues.
Also when a minor girl is enticed away by someone and then left, even the lawful guardianship of her natural guardian continues. The acts and intentions of those charged with “taking” the minor out of lawful guardianship matters more than the acts and intention of minor. Even without “animus reverendi” the minor may continue to be in the lawful guardianship of a parent.
(4) Without the consent of such guardian:
In an offence of kidnapping the consent of the person kidnapped is immaterial. Moreover, the consent of the guardian after the commission of the offence would be of no value. What is material in order to constitute the offence of kidnapping is the absence of the element of consent of the guardian?
It is only the guardian’s consent which takes the case out of the purview of Section 361. It is not necessary that taking or enticing must be by means of force or fraud. Persuasion which might create willingness to be taken out of lawful guardianship would amount to such taking.
The exception to Section 361 protects the father of an illegitimate child or person who believes himself to the lawful custody of a child. But the father of an illegitimate child who forcibly removes it from its mother to thrust up the scandal cannot claim the protection afforded by the exception.