I

A

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S. VARADARA.JAN

v.

STATE OF MADRAS

September 9, 1964

243

(K. ,SUBBA RAO, M. HIDAYATULLAH AND J, R; MUDHOLKAR JJ.)

Indian Penal Code (Act XLV of 1860), s, 361--'."Take out of keeping

of the lawful guardian", meaning of.

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

C 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 ~s an inducement held out by the accused person or an

active participation by him in the formation of the intention, either imme­

diately 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.

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[2488-E].

Case

Jaw reviewed.

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. Vi.nvanatha

Sastry, K. Jayaram and R. Ganapathy Iyer,

for the appellant.

A. Ranganadham Chetty and A. V. Rangam, for the respon­

dent.

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

affirmi.,g the conviction·.

of the appellant under s. 3 63 of the Indian Penal Code and sen­

tence 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,

ae 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 studyin)! in the 'Madr~s.

244 SUPREME COURT REPORTS I 1965] 1 s.c.it.

Medical College while the !alter was a student of the second year A

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 sayin~

that she wanted tci marry tlic appellant. Savitri's intention was

communicated by Rama to their father when he returned home al

about I 1.00 A.M. on that day. Thereupon Natarajan questioned

her. Upon being questioned Savitri started weeping but did not

utter a wcrd. The same day Natarajan took Savitri to Kodambak­

kam 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 fr.om

the appellant as possible for some time.

On the next day, i.e .. on October l, 1960 Savitri left the house

of

K. Natarajan at about

10.00 A.M. and telephoned to the appel­

lant 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. Sarni at Mylapore with a view to take

that person along with them to the Registrar's

office to witness their

marriage. After picking up

Sarni they went to the shop of Govinda­

rajulu Naidu in Netaji Subhas Chandra Bose Road and the appel­

lant purchased two gundus and Tlrumangalyam 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 agree­

ment which these two persons had entered into was attested by

Sarni 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 sarecs and blouses for Savitri Jjlc 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 Tanjorc where the}' were found by the police who were investi·

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VARADARAJAN v. STATE (Mudholkar J.) 245

A gating into a complaint of kidnapping maqe by S. N atarajan 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 evening and enquired

B 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 provecl 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

c 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 conten-

D tion 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

E' 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

F 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

G keeping of the lawful guardian of such minor

or

per­

son 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

H 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

USup./64-3

246 SUPREME COURT REPORTS [196S) I S.C.R.

guardian, of Savitri. We have no doubt that though Savitri had A

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 deposi­

tion 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 appellapt. In fact she candidly admits that on the morning

of October

I si, 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 apj,ellant himself who drove the car to Guindy and then

to Mylaporc and other places. Further, Savitri has stated that she

bad decided to marry the appellant. There

is no suggestion that the

appellant took her to .the

Sub-Registrar's office and got the agree­

ment of marriage registered there (thinking that this was sufficient

in law to make them man and wife) by force or blandishments -or

anything like thai. On the other hand the evidence of the girl

leaves no doubt that the in.sistence 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 accomJ!any him by administering any threat to her or by any

blandishmen~s. The fact of her accompanying the appellant all

along

is

IJUite c..ohsistent with Savitri'~ own desire te be the wife of

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the appellent in Wt 1ch the desire of accompanying him wherever he

went was or course implicit. In these c[rcumstances 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

tellin~ her G

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 pro­

bably 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

H

Ill unlettered girl hailing from a rural area. The learned Judge of

VARADARAJAN v. STATE (Mudholkar J.) 247

A the High Court has referred to the decision In re : Abdul Sathar(')

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 husli>and's house, there was sufficient

taking in law for the· purpose of s. 363 and expressing agreement

B with this statement of the law observed : "In this case the minor,

P.W. 4, wo~!:i 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(') Srinivasa Aiyangar J., found that the girl whom the

C accused

was charged with having kidnapped was desperately anxi­

ous to leave her husband's house and even threatened

to com­

mit suicide if she

was not taken away

from· there and observed :

"If a girl should have been wound up to such a pitch of

hatred of her husband and of his house

or household

D and she

is found afterwards to have gone out of the

keeping of her husband, her guardian, there must un­

doubtedly be clear and cogent evidence to show that

she did not leave her husband's house herself and

tha,t

her leaving was in some manner caused or brought

about by something that the accused did."

E In the light of this observation. the learned Judge considered

the evid,ence 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 rendez-

F vous; she walked up to that place herself and found the appellant

waiting in the car; she got into the car of her own accord without

the appellant asking her to step in and permittejl the appellant to

take her wherever he liked. Apparently, her one and only inten­

tion was to become the appellant's wife and thus be in a position

G 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

H intent stated in the section, it would

be a taking from the husband

within the meaning of the section.

(I) S4 M.L.1. 456. (2) 2 M. H. C. R. 331.

248 SUPREME COURT REPORTS [1965) I S.CR.

It must, however, be borne in mind that there is a distinction A

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

circum­

stance can the two be regarded as meaning the same thing for the

purposes

of s. 361 of the Indian Penal C.Qde. We would limit

our­

selves to a case like the present where the minor alleged to have B

been taken by the accused person left her father's protection know-

ing 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 .induce-C

mcnt 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

0

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

ac house where her guardian E

had kept her, joined the accused and the accused helped her in her

liesign 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 fulfilment of the inten­

tion of the girl. That part, in our opinion, falls short of an induce­

ment to the minor to slip out of the keeping of her lawful guardian F

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 fl!ther had

left l:er without the active help of the appellant.

In the next decision, that

is, that in Kumarasami's case(') upon

which the High Court

ha~ 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

G

be guilty of an offence under s. 498 (b) of the Penal Code. This H

decision was approved of in In re: Sundara Dass TevanJ'), a case

·-·-·-··

(!l 2 M. H. C. R. 331. (2) 4 M. H. C. R. 21).

VARADARAJAN v. STATE (Mudho/kar J.) 249

A 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

B 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

C Kisansing('). 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

D and custody; but the more important object of these

provisions undoubtedly

is to afford security and pro­

tection 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

E and 498 of thi Indian Penal Code should be given a wide interpre­

tation

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.

F 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

Jaw to abandon her guardian, and that, therefore, when

the minor leaves the guardian of her

own accord and when she

G

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 H irrelevant and immaterial for the offence under s.

498."

-·--·

(1) l.L;R. [1954] Dom. 784. (1) 1952 M.W.N. 604

250 SUPREME COURT REPORTS [1965] 1 S.C.R.

Whatever may be the position with respect to an offence under that A

iCCtion 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('). In that case Baron Bramwell stated·

the law of the case to the jury thus :

B

"I am of opinion that if a young woman leaves her father's

house without any persuasion, inducement,

or blandish-C

ment held out

·to her by a mah, so that· she lias 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 Viet. c. I 00, s. 55) for

the Act does not say !le shall restore her, but only that D

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. E

The other case

is Rex v. lames

Jarvis('). 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

neces­

sary to render the prisoner liable to conviction; it is F

sufficient if he per5µaded 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 G

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 H

the prisoner that he should go away with her, and he

-·----

(1) X Cox"s Criminal Carn, 402. (2) XX Cox's Criminal Ca...:s, 249.

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VARADARAJAN v. STATE (Mudho/kar !.) 251

yielded to her suggestion, taking nq active part in the

matter, you must acquit him.

If, however, prisoner's

conduct was such

as to persuade the girl, by

blandish­

ments 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

owri 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 staH:d thus in Ha/sbury'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 soli­

cited her to leave her father, and afterwards received

and harboured her when she did so.

If a girl leaves

her father of

hor own accord, the defendant taking no

active part

in the matter and

norjicrsuading 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 bdore us upon the

decisions

in Rajappan v. State of Kera/a(') and

Chathu v. Govindan

Kutty(

2

). In both the cases the

Iearne© 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

deci­

sions, the two English decisions to which we have adverted. More

or

less to the same effect is the decision in Nura v.

Rex('). 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'il

protection would not absolve him if he had at an earlier stage soli­

cited her or induced her in any manner to take this step.

(I) LL.R. [1960] Kerala, 481. (2) l.L.R. [1957] Kcrala, 591

(1) A.1.R. 1949 All. 711).

252 SUPREME COURT REPORTS (1965) I S.CR.

As against this Mr. Ranganadham Chctty appearing for the A

State has relied upon the decisions in Bisweswar Misra v. TM

King(1) and In re ; Kha/andar Saheb('). The first of these deci­

sions is distinguishable on the ground that it was found that the

accused had induced the girl to leave the house of her lawful guar­

dian. Further the learned Judges have made it clear that mere

passive consent on the part of a person in giving shelter to the B

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

Cl\Se, the act of the accused, upon the facts of the case was held -by

the Court to fall under s. 366, J.P.C. and the decision in Nura v. C

Rex(') on which reliance has been placed on behaU 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 D

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 section 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 I:

prottction of her parents of her own accord and there-

after 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 F

accused pursuant to a previous arrangement, she

con­

tinued to be under the guardianship of her father. On

the evidence, it is not possible to hold that she aban­

doned the guardianship of her father and, thereafter,

the accused took her with him."

After pointing out that there is an essential distinction between the G

words "taking" and "enticing" it was no doubt observed that the

mental attitude of

the minor is not of relevance in the

case of takin&

and that the word "take" means to. cause to go, to escort or to get

into possession.. But these observations have to be understood i11

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 H

(I) I.LR. [1949] Cuttack, 194. (2) I.LR. (1955) Andbra 290.

(3) A.l.R. 1949 All. 710.

VARADARAJAN v. STATE (Mudholkar J.) 253

A .1tidnapped 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

per­

son which brought about the willingness of the girl and this makes

B

all the difference. In our opinion, therefore, neither of these

deci­

sions 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

c and set aside the conviction and sentence passed upon him.

Appeal allowed.