Issue

Whether the ingredients of Sec 361 and Sec 366 are met with to charge the appellant with the same?

The police registered a case u/s 361 and 366 of IPC against Hasan and later on, the charge sheet was filed in

the Session Court and the magistrate committed the case of trial. Trial court convicted the appellant of both

the charges and the appeal is filed before the Hon’ble High Court of Chandigarh.

1.1 Conviction u/s 361 of IPC

To constitute the offence of kidnapping under Sec.361, the following ingredients are to be satisfied:

i. Enticing or taking away of a minor male below 16 years or female below 18 years or a

person of unsound mind.

ii. Taking away or enticing must be from the lawful guardianship.

iii. Without the consent of the lawful guardian.

1. Section 3611, Indian Penal Code, 1860 mandates for the requisites & punishment for kidnapping

from lawful guardianship.

2. The expression used in Section 361, I.P.C. is "whoever takes or entices any minor". The word

"takes" does not necessarily connote taking by force and it is not confined only to use of force,

actual or constructive. This word merely means, "to cause to go," "to escort" or "to get into

possession". No doubt it does mean physical taking, but not necessarily by use of force or fraud.

The word "entice" seems to involve the idea of inducement or allurement by giving rise to hope

or desire in the other. This can take many forms, difficult to visualise and describe exhaustively;

some of them may be quite subtle, depending for their success on the mental state of the

1
Kidnapping from lawful guardianship.—Whoever takes or entices any minor under 1[sixteen] years of age if a male,
or under 2[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. Explanation.—The words “lawful guardian” in this section include any person lawfully
entrusted with the care or custody of such minor or other person.
 person at the time when the inducement is intended to operate. This may work immediately or it may

create continuous and gradual but imperceptible impression culminating after some time, in

achieving its ultimate purposes of successful inducement.

3. The two words "takes" and "entices", as used in Section 361, I.P.C. are in our opinion, intended

to be read together so that each takes to some extent its colour and content from the other. The

statutory language suggests that if the minor leaves her parental home completely uninfluenced

by any promise, offer or inducement emanating from the guilty party, then the latter cannot be

considered to have committed the offence as defined in Section 361, I.P.C2.

4. In the present case, appellant instigated Falguni and committed the act of kidnapping of minor

girl from lawful guardian which falls under section 361, IPC.

5. The hon’ble court in its recent judgement Bisweswar Misra v. The King states that 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.

6. 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 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.3

2
Parkash vs State Of Haryana on 2 December, 2003

3
S. Varadarajan vs State Of Madras on 9 September, 1964 1965 AIR 942, 1965 SCR (1) 243
 7. Revering case of Mst. Asma And Ors. vs The State4 it is certainly doubtful whether the girl had

not actually "abandoned" the parental roof for the time being due to parental neglect and

unkindness and sought shelter from others who, out of good will towards her, had given her

advice and protection. no doubt, a person giving advice or protection to a minor girl in such

circumstances runs grave risks of criminal prosecution. But, where the fads of a case raise a

reasonable doubt whether the girl had not actually left her parent and guardian (perhaps

'abandonment" is too strong a word) of her own accord and sought the protection of strangers

against an unkind parent, who was trying to thrust an unwanted husband upon her, the accused

are entitled to get the benefit of doubt on the question whether there was really any "taking" by

them and not an attempt just to help a runaway and abandoned minor. The line may be difficult to

draw sometimes, but it is there.

8. In the present case, the appellant should be held liable as the appellant was liable to instigate and

kidnap Falguni from the lawful guardian without the consent of the parents of the girl.

1.2 Conviction u/s 366 of IPC

9. Section 3665, Indian Penal Code, 1860 mandates for the requisites & punishment for kidnapping,

abducting or compelling a woman to marry.

10. The offence under section 366 is cognizable, non-bailable and non-compoundable, and is triable

by court of session. Section 366 is one of many gender specific sections of the Indian Penal Code

4
10 March, 1965 AIR 1967 All 158, 1967 CriLJ 311It
5
Kidnapping, abducting or inducing woman to compel her marriage, etc.—Whoever kidnaps or abducts any woman
with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person
against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she
will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine; 1[and whoever, by means of criminal intimidation as
defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any
place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse
with another person shall be punishable as aforesaid]
 which provides greater protection to women by undertaking the responsibility of classifying

several acts as a punishable offence6.

11. The Hon’be Supreme Court in the case of Sultan v. Emperor7, held that It may be observed here

that Section 366 I. P. C. Is an aggravated form of Section 363 I. P. C. The consent of the girl does

not exonerate the seducer. The underlying policy of the section is (1) to uphold the lawful

authority of parents or guardians over their minor wards; (2) to throw a ring of protection round

the girls themselves & (3) to penalise the sexual commerce on the part of persons who corrupt or

attempt to corrupt, the morals of minor girls by taking improper advantage of their youth and

inexperience.

12. Similarly, in the present case Hasan and Falguni were not having the lawful authority and

Falguni, being the minor, the consent for the same could not be acceptable in the court of law and

hence, Hasan should be held liable for compelling a minor woman to marry.

13. In order to attract the ingredients of Sec 366, IPC, it is important that the accused takes the girl

away with him8. In this case, the accused compelled Falguni to move with him and they both

were caught living together in a small room by the police after two days. This act committed by

the appellant clearly states his guilt as he took the girl with him which is covered under the

ingredients of Section 366, IPC

14. In the case of State of Haryana v. Raja Ram it was seen that the prosecutrix was a young girl of

14 years. She became friendly with a person called Jai Narain, aged 32, who was a frequent

visitor. When Jai Narain was forbidden by prosecutrix’s father from coming home, he sent a

message through a Raja Ram. She was constantly persuaded to leave the house and come with Jai

Narain, who would keep her in a lot of material comforts. One night, the prosecutrix arranged to

meet Jai Narain in his house and went to meet him where she was seduced by Jai Narain.

15. It was held that Raja Ram was liable under Section 366 of IPC for compelling and abducting

women.

16. The trial court convicted the appellant for the charge u/s 366, IPC, moreover a case of kidnapping

is alleged against the appellants in respect of which a charge under Section 366A should also be

6
KavitaChandrakantLakhani v. The State of Maharashtra &Ors
7
AIR 1930 All 19(2)
8
Abdul v. Emperor (AIR 1932 ALL 580)
 framed and therefore the accused person know that he is being charged for taking away a minor

girl out of the custody of the lawful guardian.

17. Also the ingredients of Section 363, IPC involve an act of kidnapping of any person from the

lawful guardian. Kidnapping from the lawful guardianship is defined under Section 361 IPC,

where it is stated that 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,

a case of kidnapping is made out9.

18. The observations made by the court in the case of Moniram Hazarika vs State of Assam states

that on the date of the incident, the girl was a minor and the act of the appellant in taking her with

the object of getting her married to him amounted to an offence punishable

under Section 366 IPC and hence found him guilty and sentenced him as stated above.

19. Reliance was also placed, on behalf of the State, on Rashid v. State10, where it was held, by

Harish Chandra, J., that even if a girl leaves her guardian voluntarily this cannot amount to an

"abandonment" of her guardian by her.

20. We have now to apply the principles stated above as applicable to the facts of the present case.

The evidence as led shows that the appellant received a call from Falguni and there was between

the girl and the accused an arrangement from before that she would leave her father's house to

meet the accused at outskirts of Ludhiana from where she would be taken away. When under this

arrangement she was leaving the protection of her father, even if it be with the intention of not

returning again, that will not be sufficient to put an end to the ties of guardianship. The

importance and significance of the previous arrangement between the girl and the accused must

not be overlooked. We have to consider the surrounding circumstances under which the incident

took place and then come to a conclusion whether the girl would have left the father's house had

it not been for the previous arrangement with and the readiness of the accused to take her away,

though not from the doorsteps of the father's house but from some distance. On the facts of this

present case, we must hold that the previous arrangement with and the promise by the accused

made it possible for the girl to leave her father's place. The expression of the intention of not

9
Sannaia Subba Rao & Ors vs State Of A.P on 24 July, 2008
10
AIR 1953 All 412
 returning to her father's place was due to the "enticing" by the accused and she must be held to

have been taken away by the accused from the keeping of a lawful guardian, and if it be found

that she was below 18 on the date when she was taken the accused would be guilty of the offence

charged11.

21. On behalf of the defence reliance is placed before the court upon the decisions in Rajappan v.

State of Kerala and Chathu v. Govindan Kutty. 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.

22. Similarly, In taking the view the learned Judge followed, 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

step12.

23. In the present case, no sanction is being made by the parents of Falguni to go with the appellant,

moreover the appellant instigated Falguni as the evident for the same is stated above which

clearly holds the appellant liable under section 366 of IPC.

11
Debaprosad Bose vs The King on 21 December, 1948 AIR 1950 Cal 406, 54 CWN 329
12
Nura v. Rex