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PETITIONER: S. VARADARAJAN

       Vs.

RESPONDENT: STATE OF MADRAS

DATE OF JUDGMENT: 09/09/1964

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. SUBBARAO, K. HIDAYATULLAH, M.

CITATION:  1965 AIR  942            1965 SCR  (1) 243  CITATOR INFO :  D          1973 SC2313  (10)

ACT: Indian  Penal  Code (Act XLV of 1860), s. 361-"Take  out  of keeping of the lawful guardian", meaning of.

HEADNOTE: Where a minor girl, alleged to be taken away by the  accused person, had left her father’s protection knowing and  having capacity  to know the full import of what she was doing  and voluntarily  joined the accused, it could not be  said  that the  accused had taken her away from the keeping,,   of  her lawful  guardian within the meaning of s. 361 of the  Indian Penal Code (Act XLV of 1860).  Something more had to be done in a case of   that kind, such as an inducement held out  by the accused person or an active participation by him in  the formation of the intention, either immediately prior to  the minor  leaving  her father’s protection or at  some  earlier stage.   If  the evidence failed to establish one  of  these things,  the  accused  would not be guilty  of  the  offence merely  because after she had actually left  her  guardian’s house  or  a  house where her guardian had kept  her  she  - joined the accused, and the accused helped her in her design not to return  to  her guardian’s house by taking her  along with him from place to place. [248B-E]. Case law reviewed.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION : Criminal Appeal No.46  of 1963. Appeal  by special leave from the judgment and -order  dated March 22, 1963, of the Madras High Court in Criminal Appeal No. 114 of 1961. A.  V. Viswanatha Sastry, K. Jayaram and R. Ganapathy  lyer, for the appellant. A. Ranganadham Chetty and A. V. Rangam, for the respondent. The Judgment of the Court was delivered by Mudholkar  J.  This  is  an appeal  by  special  leave  from the  judgment  of  the High Court of  Madras  affirming  the

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conviction of the appellant under S. 363 of the Indian Penal Code  and  sentence of rigorous imprisonment  for  one  year awarded by the. Fifth Presidency Magistrate, Egmore, Madras. Savitri, P.W. 4, is the third daughter of S. Natarajan, P.W. 1, who is an Assistant Secretary to the Government of Madras in  the  Department of Industries and Co-operation.  At  the relevant  time,  he  was living on 6th  Street,  Lake  Area, Nungumbakkam, along with his  wife and two daughters,  Rama, P.W.  2  and Savitri, P.W. 4. The former is older  than  the latter and was studying in the Madras      244 Medical College while the latter was a student of the second year      B.Sc. class in Ethiraj College. A   few   months   before   September   30,   1960   Savitri became  friendly  with  the appellant  Varadarajan  who  was residing  in a house next door to that of S. Natarajan.  The appellant  and  Savitri used to carry on  conversation  with each  other from their respective  houses. On September  30, 1960 Rama found them talking to each other in this manner at about  9.00 A.m. and had also seen her talking like this  on some previous occasions. That day she asked Savitri why  she was talking with the appellant. Savitri replied saying  that she  wanted to marry the appellant. Savitri’s intention  was communicated by Rama to their father when lie returned  home at  about  11.00  A.M.  on  that  day.  Thereupon  Natarajan questioned  her.  Upon  being  questioned  Savitiri  started weeping  but  did not utter a word. The same  day  Natarajan took  Savitri to Kodambakkam and left her at the house of  a relative  of his. K. Natarajan, P.W. 6, the idea being  that she should be kept as far away from     the   appellant   as possible for some time. On  the next day, i.e., on October 1, 1960 Savitri left  the house of K. Natarajan at about 10.00 A.m. and telephoned  to the  appellant asking him to meet her on a certain  road  in that  area and then went to that road herself. By  the  time she  got there the appellant had arrived there in  his  car. She  got into it and both of them then went to the house  of one  P. T. Sami at Mylapore with a view to take that  person along  with them to the Registrar’s office to witness  their marriage.  After  picking up Sami they went to the  shop  of Govindarajulu  Naidu in Netaji Subhas Chandra Bose Road  and the  appellant purchased two gundus and Tirumangalyam  which were   selected  by  Savitri  and  then  proceeded  to   the Registrar’s  office.  Thereafter  the  agreement  to   marry entered  into between the appellant and Savitri,  which  was apparently written there, was got registered.Thereafter  the appellant  asked  her  to wear  the  articles  of  jewellery purchased  at Naidu’s shop and she accordingly did  so.  The agreement  which  these  two persons had  entered  into  was attested by Sami as well as by one P. K. Mar, who was a  co- accused before  the Presidency Magistrate but was  acquitted by him. After the document was registered the appellant  and Savitri went to Ajanta Hotel and stayed there for a day. The appellant  purchased  a  couple of sarees  and  blouses  for Savitri the next day and then they went by train to  Sattur. After  a stay of a couple of days there,  they proceeded  to Sirukulam on October 4, and stayed there for 10 or 12  days. Thereafter  they went to Coimbatore and then on  to  Tanjore where they were found by the police who were investi- 245 gating  into a complaint of kidnapping made by S.  Natarajan and were then brought to Madras on November 3rd.     It  may be mentioned that as Savitri did not  return  to his house after she went out on the morning of October  1st, K.  Natarajan  went  to the house of  S.  Natarajan  in  the

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evening  and  enquired whether she had  returned  home.   On finding  that  she had not, both these persons went  to  the railway  station  and  various other  places  in  search  of Savitri.   The search having proved fruitless  S.  Natarajan went  to  the  Nungumbakkam  Police  Station  and  lodged  a complaint stating there that Savitri was a minor on that day and  could  not  be found.  Thereupon  the  police  took  up investigation and ultimately apprehended, as already stated, the appellant and Savitri at Tanjore.     It is not disputed that Savitri was born on November  13, 1942  and  that she was a minor on October 1st.   The  other facts which have already been stated are also not  disputed. A two-fold contention was, however, raised and that was that in the first place Savitri had abandoned the guardianship of her  father  and in the second place that the  appellant  in doing what he did, did not in fact take away Savitri out  of the keeping of her lawful guardian.    The question whether a minor can abandon the guardianship of  his or her own guardian and if so the  further  question whether Savitri could, in acting as she did, be said to have abandoned her father’s guardianship may perhaps not be  very easy  to answer.  Fortunately, however, it is not  necessary for us to answer either of them upon the view which we  take on  the  other question raised before us and  that  is  that "taking" of Savitri out of the keeping of her father has not been  established.  The offence of "kidnapping  from  lawful guardianship" is defined thus in the first paragraph of s.   361 of the Indian Penal Code :               "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." It  will thus be seen that taking or enticing away  a  minor out  of  the keeping of a lawful guardian  is  an  essential ingredient  of the offence of kidnapping.  Here, we are  not concerned  with enticement but what, we have to find out  is whether  the  part  played  by  the  appellant  amounts   to "taking", out of the keeping of the lawful L2Sup./64--3 246 guardian, of Savitri.  We have no doubt that though  Savitri had  been left by S. Natarajan at the house of his  relative K.  Natarajan  ,She  still continued to  be  in  the  lawful keeping  of the former but then the question remains  as  to what  is it which the appellant did that constitutes in  law "taking".  There is not a word in the deposition of  Savitri from  which  an inference could be drawn that she  left  the house  of K. Natarajan at the instance or even a  suggestion of  the appellant.  In fact she candidly admits that on  the morning  of  October  1st, she  herself  telephoned  to  the appellant to meet her in his car at a certain place, went up to  that place and finding him waiting in the car  got  into that car of her own accord.  No doubt, she says that she did not  tell  the  appellant where to go and that  it  was  the appellant  himself who drove the car to Guindy and  then  to Mylapore and other places.  Further, Savitri has stated that she  had  decided  to  marry the  appellant.   There  is  no suggestion   that  the  appellant  took  her  to  the   Sub- Registrar’s  office  and  got  the  agreement  of   marriage registered  there (thinking that this was sufficient in  law to  make  them man and wife) by force  or  blandishments  or ,anything like that.  On the other hand the evidence of  the

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girl  leaves no doubt that the insistence of  marriage  came from  her  own side.  The appellant, by complying  with  her wishes  can  by no stretch of imagination be  said  to  have taken her out of the keeping ,of her lawful guardian.  After the  registration  of the agreement both the  appellant  and Savitri lived as man and wife and visited -different places. There is no suggestion in Savitri’s evidence, who, it may be mentioned had attained the age of discretion and was on  the verge  of  attaining  majority  that she  was  made  by  the appellant  to accompany him by administering any  threat  to her  or by any blandishments.  The fact of her  accompanying the  appellant all along is quite consistent with  Savitri’s own  desire  to be the wife of the appellant  in  which  the desire  of accompanying him wherever he went was  of  course implicit.  In these circumstances we find nothing from which an  inference  could be drawn that the  appellant  had  been guilty  of  taking away Savitri out of the  keeping  of  her father.   She willingly accompanied him and the law did  not cast  upon him the duty of taking her back to  her  father’s house or even of telling her not to accompany him.  She  was not  a  child of tender years who was unable  to  think  for herself  but,  as  already  stated,  was  on  the  verge  of attaining majority and was capable of knowing what was  good and  what  was bad for her.  She was no  uneducated  or  un- sophisticated village girl but a senior college student  who had  probably  all her life lived in a modern city  and  was thus far more capable of thinking for herself and acting  on her own than perhaps an unlettered girl hailing from a rural area.  The learned Judge of 247 the  High Court has referred to the decision In re  :  Abdul Sathar(1)  in  which  it was held that  where  the  evidence disclosed   that,  but  for  something  which  the   accused consented  to do and ultimately did, a minor girl would  not have  left her husband’s house, or would not have been  able to leave her husband’s house, there was sufficient taking in law for the purpose of S. 363 and expressing agreement  with this statement of the law observed: "In this case the minor, P.W. 4, would not have left the house but for the promise of the appellant that he would marry her." Quite apart from the question  whether this amounts to blandishment we may  point out  that  this  is not based upon any  evidence  direct  or otherwise.  In Abdul Sathar’s case(1) Srinivasa Aiyangar J., found that the girl whom the accused was charged with having kidnapped  was  desperately anxious to leave  her  husband’s house and even threatened to commit suicide  if she was  not taken away from there and observed :                "Ifa girl should have been wound up to such a               pitch  of  hatred of her husband  and  of  his               house or household and she is found afterwards               to  have  gone  out  of  the  keeping  of  her               husband, her guardian, there must  undoubtedly               be clear and cogent evidence to show that  she               did not leave her husband’s house herself  and               that her leaving was in some manner caused  or               brought  about by something that  the  accused               did."   In  the  light  of  this  observation  the  learned  Judge considered  the  evidence and came to  the  conclusion  that there  was  some legal evidence upon which a court  of  fact could  find against the accused.  This decision,  therefore, is  of  little assistance in this case because,  as  already stated, every essential step was taken by Savitri herself  : it  was  she who telephoned to the appellant and  fixed  the rendezvous,  she walked up to that place herself  and  found

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the  appellant waiting in the car; she got into the  car  of her  own accord without the appellant asking her to step  in and  permitted the appellant to take her wherever he  liked. Apparently,  her  one and only intention was to  become  the appellant’s wife and thus be in a position to be always with him.   The  learned  Judge also referred to a decision in  R.  v. Kumarasami(2)  which was a case under s. 498 of  the  Indian Penal  Code.  It was held there that if whilst the wife  was living with her husband, a man knowingly went away with  her in such a way as to deprive the husband of his control  over her  with  the intent stated in the section, it would  be  a taking from the husband within the meaning of the section. (1)  54 M.L.J. 456. (2) 2 M. H. C. R. 331. 248 It  must,  however,  be  borne  in  mind  that  there  is  a distinction  between  "taking"  and  allowing  a  minor   to accompany a person.  The two expressions are not  synonymous though  we  would like to guard ourselves from  laying  down that in no conceivable circumstance can the two be  regarded as meaning the same thing for the purposes of s. 361 of  the Indian Penal Code.  We would limit ourselves to a case  like the  present where the minor alleged to have been  taken  by the accused person left her father’s protection knowing  and having  capacity  to know the full import of  what  she  was doing voluntarily joins the accused person.  In such a  case we  do not think that the accused can be said to have  taken her away from the keeping of her lawful guardian.  Something more has to be shown in a case of this kind and that is some kind  of  inducement held out by the accused  person  or  an active  participation  by  him  in  the  formation  of   the intention of the minor to leave the house of the guardian.     It  would,  however, be sufficient  if  the  prosecution establishes  that  though  immediately prior  to  the  minor leaving the father’s protection no active part was played by the  accused,  he  had at some earlier  stage  solicited  or persuaded  the minor to do so.  In our, opinion if  evidence to establish one of those things is lacking it would not  be legitimate to infer that the accused is guilty of taking the minor  out  of  the keeping of the  lawful  guardian  merely because after she has actually left her guardian’s house  or a house where her guardian had kept her, joined the  accused and  the accused helped her in her design not to  return  to her guardian’s house by taking her along with him from place to place.  No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the  girl.   That part, in our opinion, falls  short  of  an inducement  to the minor to slip out of the keeping  of  her lawful  guardian  and  is,  therefore,  not  tantamount   to "taking".    The  case  before  us  is not of  a  kind  considered  by Srinivasa Aiyangar J., in that the facts established do  not show  that Savitri would not have left K. Natarajan’s  house in which her father had left her without the active help  of the appellant.   In  the  next  decision, that  is,  that  in  Kumarasami’s case(1)  upon  which  the  High Court  has  relied,  it  was observed that the fact that a married woman whom the accused was  alleged  to  have taken or  enticed  away  for  certain purposes  was a temptress, would make no difference and  the accused who yielded to her solicitations would be guilty  of an  offence  under  s.  498 (b) of  the  Penal  Code.   This decision was approved of in In re: Sundara Days Tevan (2)  , a case

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(1) 2 M. H. C. R. 331. (2) 4 M. H. C. R. 20. 249 to  which  also the High Court has referred.  The  basis  of both  these  decisions  appears to  be  that  depriving  the husband of his proper control over his wife, for the purpose of illicit intercourse is the gist of the offence of  taking away  a  wife  under the same  section  and  that  detention occasioning such deprivation may be brought about simply  by the  influence of allurement and blandishment.  It  must  be borne  in mind that while ss. 497 and 498, I.P.C. are  meant essentially  for  the  protection  of  the  rights  of   the husband,-  s. 361 and other cognate sections of  the  Indian Penal  Code  are  intended more for the  protection  of  the minors  and persons of unsound mind themselves than  of  the rights of the guardians of such persons.  In this connection we  may  refer  to  the  decision  in  State  v.  Harbansing Kisansing(1).   In that case Gajendragadkar J., (as he  then was)  has,  after  pointing out what  we  have  said  above, observed:               "It  may be that the mischief intended  to  be               punished  partly consists in the violation  or               the  infringement of the guardians’  right  to               keep their wards under their care and custody;               but   the  more  important  object  of   these               provisions  undoubtedly is to afford  security               and protection to the wards themselves."   While, therefore, it may perhaps be argued on the basis of the two Madras decisions that the word "taking" occurring in ss.  497 and 498 of the Indian Penal Code should be given  a wide   interpretation  so  as  to  effectuate   the   object underlying these provisions there is no reason for giving to that word a wide meaning in the context of the provisions of s. 361 and cognate sections.   The  last case relied upon by the High Court is  Ramaswami Udayar v. Raju Udayar(2) which is also a case under s.  498, I.P.C.  In  that case the High Court has  followed  the  two earlier  decisions  of  that Court to  which  we  have  made reference  but  in the course of the  judgment  the  learned Judge has observed that it is not open to a minor in law  to abandon  her guardian, and that, therefore, when  the  minor leaves  the  guardian of her own accord and when  she  comes into the custody of the accused person, it is not  necessary that  the latter should be shown to have committed an  overt act before he could be convicted under s. 498.  The  learned Judge has further observed :               "A  woman’s  free will, or her  being  a  free               agent, or walking out of her house of her  own               accord    are   absolutely   irrelevant    and               immaterial for the offence under s. 498." (1) I.L.R. [1954] Bom 784. (2) 1952  M.W.N. 604 250 Whatever  may  be the position with respect  to  an  offence under that ,section and even assuming that a minor cannot in law abandon the guardianship of her lawful guardian, for the reason  which we have already stated, the accused person  in whose  company she is later found cannot be held  guilty  of having  taken her out of the keeping of her guardian  unless something more is established.    The view which we have taken accords with that  expressed in  two  decisions reported in Cox’s  Criminal  Cases.   The first of them is Reg. v. Christian Olifier(1).  In that case Baron Bramwell stated the law of the case to the jury thus :               "I am of opinion that if a young woman  leaves

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             her  father’s  house without  any  persuasion,               inducement, or blandishment held out to her by               a  man, so that she has got fairly  away  from               home, and then goes to him, although it may be               his  moral duty to return her to her  parent’s                             custody,   yet   his  not  doing   so  is   no               infringement  of this Act of Parliament (24  &               25  Vict. c. 100, s. 55) for the Act does  not               say  he  shall restore her, but only  that  he               shall not take her away." The  jury returned a verdict of guilty in this case  because the girl’s evidence showed that the initial formation of her intention to leave her father’s house was influenced by  the solicitations  of  the accused and by his promise  to  marry her. The  other case is Rex v. James Jarvis(2).  There  Jelf  J., has stated the law thus to the jury :               "Although  there must be a taking, yet  it  is               quite  clear  that an actual  physical  taking               away  of the girl is not necessary  to  render               the  prisoner  liable  to  conviction;  it  is               sufficient  if he persuaded her to  leave  her               home  or  go away with him  by  persuasion  or               blandishments.    The  question  for  you   is               whether  the  active part in  the  going  away               together was the act of the prisoner or of the               girl;  unless it was that of the prisoner,  he               is entitled to your verdict.  And, even if you               do not believe that he did what he was morally               bound  to do-namely, tell her to return  home-               that  fact  is  not by  itself  sufficient  to               warrant   a  conviction  :  for  if  she   was               determined  to  leave  her  home,  and  showed               prisoner that that was her determination,  and               insisted  on leaving with him-or even  if  she               was so forward as to write and suggest to  the               prisoner that he should go away with her,  and               he               (1) X Cox’s Criminal Cases, 402.               (2) XX Cox’s Criminal Cases, 249.               251               yielded  to her suggestion, taking  no  active               part in them matter, you must acquit him.  If,               however,  prisoner’s  conduct was such  as  to               persuade   the  girl,  by   blandishments   or               otherwise,  to leave her home either  then  or               some future time, he ought to be found  guilty               of the offence of abduction." In  this case there was no evidence of any  solicitation  by the  accused at any time and the jury returned a verdict  of ’not  guilty’.   Further, there was no suggestion  that  the girl was incapable of thinking for herself and making up her own mind. The relevant provisions of the Penal Code are similar to the provisions  of  the Act of Parliament referred  to  in  that case. Relying       upon  both  these  decisions  and  two   other decisions,  the law in England is stated thus in  Halsbury’s Laws of England, 3rd edition, Vol. 10, at p. 758 :               "The  defendant may be convicted, although  he               took  no  part in the actual  removal  of  the               girl, if he previously solicited her to  leave               her  father, and afterwards received and  har-               boured her when she did so.  If a girl  leaves

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             her  father of her own accord,  the  defendant               taking  no active part in the matter  and  not               persuading or advising her to leave, he cannot               be  convicted of this offence, even though  he               failed  to  advise  her not  to  come,  or  to               return, and afterwards harboured her."    On behalf of the appellant reliance was placed before  us upon  the  decisions in Rajappan v. State of  Kerala(1)  and Chathu v. Govindan Kutty (2).  In both the cases the learned Judges  have  held that the expression "taking  out  of  the keeping  of the lawful guardian" must signify some act  done by the accused which may be regarded as the proximate  cause of the person going out of the keeping of the guardian;  or, in  other  words an act but for which the person  would  not have  gone out of the keeping of the guardian as he  or  she did.   In  taking  this view  the  learned  Judge  followed, amongst other decisions, the two English decisions to  which we  have adverted.  More or less to the same effect  is  the decision in Nura v. Rex(3).  We do not agree with everything that  has  been said in these decisions and  would  make  it clear  that  the  mere circumstance that  the,  act  of  the accused was not the immediate cause of the girl leaving  her father’s  protection would not absolve him if he had  at  an earlier stage solicited her or induced her in any manner  to take this step. (1) I.L.R. [1960] Kerala, 481. (2)  I.L.R. [1957] Kerala, 591 (3) A.I.R. 1949 All. 710. 252   As against this Mr. Ranganadham Chetty appearing  for  the State  has relied upon the, decisions in Bisweswar Misra  v. The  King (1) and In re : Khalandar Saheb(2).  The first  of these decisions is distinguishable on the ground that it was found  that  the accused had induced the girl to  leave  the house  of her lawful guardian.  Further the  learned  Judges have made it clear that mere passive consent on the part  of a  person in giving shelter to the minor does not amount  to taking  or  enticing of the minor but  the  active  bringing about  of the stay of the minor in the house of a person  by playing upon the weak and hesitating mind of the minor would amount  to  "taking" within the meaning of s. 361.   In  the next  case,  the act of the accused, upon the facts  of  the case was held by the Court to fall under s. 366, I.P.C.  and the  decision in Nura v. Rex(3) on which reliance  has  been placed   on  behalf  of  the  appellant  is   distinguished. Referring to that case it was observed by the Court :               "Reliance  is  placed  upon  the  decision  of               Mustaq  Ahmed  J. in Nura V. Rex  wherein  the               learned Judge observed that where a minor girl               voluntarily  leaves the roof of  her  guardian               and  when  out  of  his  house,  comes  across               another  who  treats  her  with  kindness,  he                             cannot  be  held  guilty  under  secti on  361,               Indian Penal Code.  This decision cannot  help               the accused for, on the facts of that case, it               was  found  that  the girl  went  out  of  the               protection  of her parents of her  own  accord               and thereafter went with the accused......  In               the  present case it is not possible  to  hold               that she is not under the guardianship of  her               father.    In  either   contingency,   namely,               whether  she  went  out  to  answer  calls  of               nature,  or whether she went to the  house  of               the    accused   pursuant   to   a    previous

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             arrangement,  she  continued to be  under  the               guardianship of her father.  On the  evidence,               it is not possible to hold that she  abandoned               the   guardianship   of   her   father    and,               thereafter, the accused took her with him." After  pointing out that there is an  essential  distinction between  the words "taking" and "enticing" it was  no  doubt observed  that  the mental attitude of the minor is  not  of relevance  in  the case of taking and that the  word  "take" means  to cause to go, to escort or to get into  possession. But these observations have to be understood in the  context of  the  facts found in that case.  For, it had  been  found that the minor girl whom the accused was charged with having (1) I.L.R. [1949] Cuttack, 194. (2) I.L.R. [1955]  Andhra 290. (3) A.I.R. 1949 All. 710. 253 kidnapped  had  been persuaded by the accused when  she  had gone  out of her house for answering the call of nature,  to go  along with him and was taken by him to  another  village and kept in his uncle’s house until she was restored back to her  father  by the uncle later.  Thus, here  there  was  an element  of persuasion by the accused person  which  brought about  the  willingness of the girl and this makes  all  the difference.   In  our opinion, therefore, neither  of  these decisions is of assistance to the State.    We  are satisfied, upon the material on record,  that  no offence  under  S.  363 has  been  established  against  the appellant and that he is, therefore, entitled to  acquittal. Accordingly we allow the appeal and set aside the conviction and sentence passed upon him.                    Appeal allowed. 254