Kidnapping from lawful guardianship (Section 361 of IPC)
The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person.
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.
Ingredients of kidnapping from lawful guardianship (S. 361)
To constitute an offence under Section 361:
1) There must be taking or enticing of a minor or of a person of unsound mind;
2) The minor must be under 16 years of age, if a male, or under 18 years of age, if a female;
3) The taking or enticing must be out of the keeping of the lawful guardian of the minor or person of unsound mind; and
4) The taking or enticing must be without the consent of such guardian.
The object of Section 361 is at least as much to protect children of tender age from being abducted or seduced for improper purposes as for the protection of the rights of parents and guardians.
The offence of kidnapping from lawful guardianship arises when a minor, under 16 in the case of a male or under 18 in the case of a female is taken or enticed from the keeping of the lawful guardian.
Section 361 has no application to children without any guardian, legal, lawful or de facto such as a street (i.e., a poor) Arab, who may permit himself to be taken away by any one who may choose to do so.
The person taking away such a child may himself become the ‘lawful guardian’ of the child, and any other person taking or enticing the child out of his keeping may be guilty of kidnapping. The same rule applies to a lunatic without a lawful curator.
Meaning of ‘takes or entices’
The word ‘take’ means to cause to, to go to, escort, or to get in the possession. The word ‘take’ implies want of wish and absence of desire of the person taken. Taking implies neither force nor misrepresentation.
‘Enticing’ is an act of the accused by which the person kidnapped is induced of his own accord to go to the kidnapper. The word ‘entice’ involves an idea of inducement or allurement by exciting hope or desire in the other.
There is an essential distinction between the two terms ‘take’ and ‘entice’. The mental attitude of the minor is not of relevance in the case of taking. The word ‘take’ means to cause to go, to escort or to get into possession.
The word ‘entice’ involves an idea of inducement by exciting hope or desire in the other. One does not entice another unless the latter attempted to do a thing which she or he would not otherwise do.
The juxta position of these two words makes it clear that the act of taking is complete when the accused takes her with him or accompanies her in the ordinary sense of the term, irrespective of her mental attitude.
When the accused took the minor with him, whether she was willing or not, the act of taking was complete and it amounted to ‘taking’ her out of the father’s custody within the meaning of Section 361.
The expression ‘enticing’ involves that, while the person kidnapped might have left the keeping of the lawful guardian willingly, still the state of mind that brought about that willingness must have been induced or brought about in some way by the accused.
Meaning of ‘Lawful guardian’
The word ‘lawful’ is different from the term ‘legal’. A guardian may be lawful without being a legal guardian. A legal guardian is the guardian appointed by law, or whose appointment is in consonance with the general law of the land and the person whose guardian he is. A lawful guardian is a guardian whose custody is merely sanctioned by law.
A legal guardian is necessarily a lawful guardian but not necessarily vice versa e.g., a school master or an employer is a lawful guardian, a parent of the minor is a legal guardian. The expression ‘lawful guardian’ would include a natural guardian, a testamentary guardian, appointed by court and a person lawfully entrusted with the care and custody of a minor.
The guardian is described in this section as a ‘lawful guardian’ and not as a legal guardian’, and the significance of the adjective ‘lawful’ is emphasised by the explanation which shows that it includes any person who is lawfully entrusted with the care or custody of the ward concerned.
The expression ‘lawful guardian’ in Section 361 would include a person who voluntarily undertakes the care and custody of the minor in a lawful manner. If an orphan is left without the protection of the legal guardian and a philanthropic person out of humanitarian or charitable motives, takes up the care and custody of such an orphan and treats him as his child, the person so taking the custody and care of the orphan comes within the meaning of Section 361.
If the guardian though not a de jure guardian, was still a guardian de facto if his custody was not illegal and he had accepted the child. The explanation to Section 361 says that the words ‘lawful guardian’ would include any person lawfully entrusted the care or custody of such minor.
‘Legal guardian’ would be parents or guardians appointed by courts. ‘Lawful guardian’ would include within its meaning not only legal guardians, but also such persons like a teacher, relative etc. who are lawfully entrusted with the care and custody of minor.
Out of the keeping of the lawful guardian:
The word ‘keeping’ implies neither apprehension nor detention but rather maintenance, protection and control, manifested not by continued action but as available on necessity arising. It is not necessary that the minor should be in the physical possession of the guardian. It is enough if the minor is under a continuous control which is for the first time terminated by the act complained of.
Section 361 makes the taking or enticing of any minor person or person of unsound mind ‘out of the keeping of the lawful guardian’, an offence. The meaning of the words ‘keeping of the lawful guardian’ came up for consideration before the Supreme Court in State of Haryana v. Raja Ram [AIR 1973 SC 819].
The court observed that the word ‘keeping’, in the context connotes the idea of charge, protection, maintenance and control. The court compared it with the language used in English statutes, where the expression used was ‘take out of the possession’ and not ‘out of the keeping’.
The difference in the language between the English statutes and this section only goes to show that Section 361 was designed to protect the sacred right of the guardian with respect to their minor wards.
Without the consent of such guardian:
The taking or enticing of the minor out of the keeping of the lawful guardian must be without his consent. The consent of the minor is immaterial. If men by false and fraudulent representations induce the parents of a girl to allow him to take her away, such taking will amount to kidnapping. Consent given by the guardian after the commission of the offence would not cure it.
In Gooroodoss Rajbunsee v. R [(1865) 4 WR (Cr) 7], where a person carried off, without the consent of her father, a girl to whom he was betrothed by her father, because the father suddenly changed his mind and broke off the engagement, it was held that he was guilty of kidnapping.
‘Entrustment’ means the giving, handing over or confiding of something by one person to another. It involves the idea of active power and motive by the person reposing the confidence towards the person in whom the confidence is reposed.
The ‘entrustment’ may be by a legal guardian; it may be written or oral, express or implied. Entrustment which this section requires may be inferred from a well- defined and consistent course of conduct governing the relations of the minor and the person alleged to be the lawful guardian.
In Abdul v. Emperor [AIR 1928 Mad. 525] the accused wrote several letters to the minor girl alluring her to come away from her father’s house. The Court held that the accused was guilty of the offence of kidnapping from lawful guardian.
In Bhagavan Paanigrahi v. State [1989 Cr.LJ 103], the minor girl aged sixteen years, came from a village for education. Her father used to visit her monthly once or twice and was looking after her necessities. She stayed in a rented room. She came into contact with the accused.
Both of them went away from that town to another place with an intention to get married. The consent of the minor girl was not considered and the court convicted the accused under Section 361 as there was no guardian’s consent.
In Ram Das v. State of MP [AIR 1970 SC 864], the girl compelled the accused to marry and got the marriage registered. When she informed the same, her father locked her in a room. She broke open the room and went to stay with the accused. The court acquitted the accused since there was no enticing or taking to constitute the offence.
In Varadarajan v. State of Madras [AIR 1965 SC 942], a 16 year old girl voluntarily fell in love with the accused and got the marriage agreement registered. The Supreme Court held that, though she was a minor girl, the offence would not amount to kidnapping since there was no taking or enticing.
The Supreme Court further observed: ‘There is a distinction between ‘taking’ and ‘allowing’ a minor to accompany a person. Two expressions are not synonymous though cannot be laid down that in no conceivable circumstances can the two be regarded as the same meaning for the purposes of Section 361.
Where the minor leaves her father’s house knowing and having capacity to know the circumstances of what she is doing voluntarily, it means the accused person cannot be deemed to have taken away from the lawful guardianship. Something more has to be shown in a case of this kind and some kind of inducement held out by the accused person or an active participation by him in the information of the intention of the girl to leave the house of the guardian”.