This article has been written by Sarthak Mittal. The article aims to demystify the dictum laid down by the Supreme Court in the case of S. Varadarajan vs. State of Madras (1964). The article aims to explain legal propositions such as what are the essential ingredients of the offence of kidnapping. Further, the article delves into the significance and legal implications of the ingredient of “taking” in the offence of kidnapping. The article aims to provide clarity on the legal issue of whether a child can abandon the “keeping” of his or her lawful guardian out of his/her own volition and whether the mere facilitation of such acts when done by the child is sufficient to constitute the offence of kidnapping.
Table of Contents
Introduction
The history behind the word “kidnapping” can be found in the Law Commission’s 42nd Report (1971) on the Indian Penal Code, which provides that the said word is derived from the words “kid” which means “child” and “napper” which is an American word used for “thief”. The word “kidnapper” was used in the 17th century to describe a person who stole children or another to provide servants and labourers for the American plantations. In England, the word “kidnapping” has a specific meaning, which is to steal or carry away a person. Blackstone defines the word “kidnapping” in a distinct sense, wherein he refers to it as an offence of sending a victim to another country. Russell refers to the word “kidnapping” as the offence of a child being taken away against the will of his friend or lawful guardian.
In India, interestingly, the offence of kidnapping is worded in such a manner that it includes all of these definitions within it. This is done by categorising the offence of kidnapping into two parts namely the offence of kidnapping from India, which is defined in Section 360 of the Indian Penal Code, 1860 (hereinafter, referred to as “the Code” for brevity) and the offence of kidnapping from lawful guardianship, defined in Section 361 of the Code. The former is an offence against the person who is being conveyed beyond the Indian territory without his consent, whereas, the latter is an offence against the lawful guardian of a minor wherein the minor child is taken or enticed out of such keeping by the perpetrator.
The dictum laid down by the Supreme Court in the case of S. Varadarajan vs. State of Madras (1964) holds extreme significance in the interpretation and application of the provisions related to the offence of kidnapping, wherein the Court clarifies the interpretation of the essential ingredients of the offence of kidnapping from a lawful guardian. It would not be wrong to say that the realistic application of the offence of kidnapping cannot be understood without referring to the given case.
Details of the case
Name of the case
S. Varadarajan vs. State of Madras
Date of judgement
9th September, 1964
Parties to the proceedings
Appellant
S. Vardarajan was the Appellant in the case and he was the accused in the trial.
Respondent
The State of Madras
Represented by
Advocate for Appellant
Senior Advocate A.V. Viswanatha Sastri appeared for the Appellant along with advocates K. Jayaram and R. Ganapathy Iyer
Advocate for Respondent
Senior Advocate A. Ranganadham Chetty appeared for the respondent, along with advocate A.V. Rangam
Equivalent citations
1964 SCC Online SC 36, AIR 1965 SC 942, (1965) 1 SCR 243, (1965) 2 CriLJ 33
Type of the case
The appeal has been filed through a special leave petition under Article 136 of the Indian Constitution against the impugned judgement of the Madras High Court in criminal appeal no. 114 of 1961, dated March 22, 1963.
Court
The Supreme Court of India
Referred provisions
Section 361 and 363 of the Indian Penal Code, 1860
Bench
The case was decided by a three-judge bench comprising of Hon’ble Justices K. Subba Rao, M. Hidayatullah and J.R. Mudholkar.
Author of the judgement
The dictum was laid down by a unanimous decision of a three-judge bench, wherein, the judgement was authored by Hon’ble Justice J.R. Mudholkar.
Facts of S. Varadarajan vs. State of Madras (1964)
| Date | Brief facts of the case |
| Prior to 30th September 1960 | S. Natrajan and his wife (the victim in the given case) lived with their two daughters, namely Savitri and Rama, at 6th Street, Lake Area, Nungambakkam, Madras. The youngest daughter Savitri, was pursuing B.Sc. from Ethiraj College at the relevant time. In the given case, it is pertinent to note that Savitri was born on 13th November 1942. Varadarajan (the appellant) resided in the house next door to that of S. Natarajan.Due to the proximity between the two houses, the appellant and Savitri were able to converse with one another from their respective houses. |
| 30th September, 1960 | In the morning, Savitri’s sister, Rama, found her talking to the appellant. Rama had also found them conversing on previous occasions as well. When Rama inquired about the purpose of the conversation with the appellant, Savitri replied that she wanted to marry the appellant. Rama informed about Savitri’s motive to her father, S. Natrajan. Savitri was questioned upon this matter, to which she did not reply; rather, she kept on crying and stayed silent. S. Natrajan thought that it would be best to keep Savitri distant from the appellant and thus, took her to Kodambakkam and left her at the house of K. Natrajan, who was his relative. |
| 1st October, 1960 | The very next day, after being left at her relative’s house, Savitri left the house and had a telephone call with the appellant, wherein, she asked the appellant to meet her near the place she was currently residing in his car. It is pertinent to note that Savitri was 17 years, 10 months, and 18 days old on this date. Savitri met the appellant at the discussed location, got into the car and went with the appellant to the house of one P.T. Sami in Mylapore. They intended to take P.T. Sami as a witness to their marriage to the Registrar’s office. The appellant and Savitri also went to the shop of Govindarajulu Naidu at Netaji Subhas Chandra Bose Road, wherein, they bought sweets and jewellery selected by Savitri herself. Thereafter, they proceeded to the registrar’s office. The Appellant and Savitri got married at the Registrar’s office through an agreement which was also attested by Sami as well as by one P.K. Mar.K. Natrajan, on the other hand, went to S. Natrajan’s house to inquire about the whereabouts of Savitri suspecting that she might have returned home. However, after realising that Savitri is nowhere to be found, they tried to search for her at the railway station and other places. When the search did not come to fruition, they lodged a missing complaint at the nearest police station. |
| 2nd October, 1960 | After getting married, the appellant and Savitri went to Ajanta Hotel and stayed there for a day. The next day, they purchased sarees and blouses for Savitri.The couple left for Sattur through a train. |
| 4th October, 1960 | The couple went to Sirukulam, Coimbatore and then to Tanjore. At Tanjore, they were traced by the police, who were investigating the complaint of kidnapping made by S. Natarajan. |
| 3rd November, 1960 | The police brought Savitri and the Appellant to Madras. |
| 22nd March, 1963 | The case first went before the Fifth Presidency Magistrate, Egmore, Madras, wherein, the appellant (the accused in the trial) was charged under Section 363 of the Indian Penal Code, 1860, which provides for the offence of kidnapping. The appellant was sentenced to rigorous imprisonment for one year by the said court. The conviction and sentence passed by the Presidency Court were later affirmed by the High Court of Madras. Hence, the appellant filed a special leave petition under Article 136 of the Indian Constitution against the impugned order of the Madras High Court dated 22.03.1963. Thus, the case came before the Supreme Court of India. |
Essential ingredients of the offence of kidnapping from lawful guardian (Section 361 of the Indian Penal Code, 1860)
To understand the issues and the dictum laid down by the Court in the given case, it is important to be equipped with an understanding of the essential ingredients that are provided in Section 361 of the Indian Penal Code, 1860. It is on the fulfilment of these ingredients that the offence of kidnapping from a lawful guardian is attracted. The ingredients are as follows:-
Age of child
It is first of all essential to understand that the offence of kidnapping from a lawful guardian is an offence against the lawful guardian and not against the child. The child in this case is, below the age of 18 years in the case of a female and 16 years in the case of a male. The age of the child is set by the legislature with an intention to distinguish between persons who can abandon the keeping of their lawful guardians intentionally and those who cannot breed the said intention. To create the distinction, the legislature has adopted the objective parameter of age, wherein, the legislature imposes a bright line rule holding that a female child below the age of 18 years and a male child below the age of 16 years can not abandon the lawful keeping of their lawful guardians intentionally. Thus, to frame a charge under Section 363 of the Code, it is pertinent for the prosecutor to establish that the age of the child alleged to have been kidnapped was below the age of 18 or 16 years as the case may be. The material date to determine the age of the child is the date on which the incident of kidnapping took place.
Keeping of lawful guardian
The second ingredient is that the child should be within the “keeping” of the lawful guardian. To understand the said ingredient, it is imperative to understand the meaning of the words “lawful guardian” and “keeping.”
Lawful guardian
The word “lawful guardian” has been deliberately used by the legislator to incorporate a term that has a wider import than “legal” or “natural” guardian. Legal and natural guardians have been defined under personal laws such as the Hindu Minority and Guardianship Act, 1956 and the Muslim Personal Law, which is applied through the Muslim Personal Law (Shariat) Application Act, 1937, or secular laws such as the Guardian and Wards Act, 1890. When the concept of legal and natural guardians is culled out of these laws, it is clear that legal and natural guardians will include a handful of people related to the minor, such as parents, grandparents, and husbands in the case of a minor married girl, and other guardians appointed by the Court keeping in mind the best interests of the minor.
However, the term “lawful guardian” has a wider ambit and it will include natural and legal guardians alongside any other person who has been entrusted with the care and custody of the child. The same has been given under the explanation of Section 361 of the Code.
Keeping
The second word, “keeping” is also to be understood in the context of the object and purpose of the provision. The object of the provision is to punish anyone who takes or entices a child out of the safe custody and keeping of the lawful guardian. Thus, the provision prohibits any person from taking the child to such a place where, the lawful guardian would not be able to access the child, care for the child or keep the child safe. In this context, the word “keeping” is not only restricted to the immediate keeping of a child; rather, it will be interpreted as any place where the lawful guardian knows the whereabouts of the child, feels that the child is accessible and can be kept safe by him even though he is not in the immediate presence of the child.
For instance, when a child is at school, the lawful guardian will be aware of the whereabouts of the child, and they would have permitted the child’s presence at such a place, ensuring that the child will be safe and protected. Apart from that, the child in such a case is accessible to the guardian. In such a case, if the child is taken or enticed without the consent of such a guardian from the school, the perpetrator can not take the defence that the child was not in the “keeping” of the guardian, as the term “keeping” is not merely limited to the immediate physical presence of the guardian.
Taking or enticing
Generally, an offence has two elements, namely, the mental element called the mens rea and the physical element called the actus reus. Thus, criminal liability can only be fastened when both elements simultaneously coexist. However, there are offences where criminal liability can be fastened only by establishing the guilt act or the physical element; these offences are called strict liability offences. The offence of kidnapping from a lawful guardian is also a strict liability offence and the actus reus or the physical element, in this offence, is the act of taking or enticing.
“Taking” herein refers to the act of taking by force or by any other physical act. Thus, for an act to fall within the ambit of “taking,” it is pertinent to establish that the perpetrator has in some way overpowered the physical will of the child. On the other hand, “enticing” means an act of luring, instigating, goading or provoking. In the case of enticement, the person does an act due to which the child himself follows the perpetrator. It is pertinent to note that even sexual acts can be held to be a mode of luring or enticing a child. To make it clear, taking and enticing can be understood by the following example:-
‘A’ is a minor who has been dropped at the park by his mother so that he can play with his friends. Now in this scenario, if ‘C’ administers ‘A’ some drug to render him unconscious and then picks ‘A’ and runs away from the park, the act of ‘C’ will be said to be “taking”. Whereas, if ‘C’ falsely displays that he is a person sent by his parents to take him from the park to the movies so that, the child willfully accompanies him, the act of ‘C’ will fall within the ambit of enticing if the child believes the statement made and accompanies him.
Consent
One of the defences that has been allowed by Section 361 of the Code is to prove that the lawful guardian has given consent to the alleged accused. However, it is pertinent to understand that the quality and extent of consent can always be put to the test by the prosecution. For instance, if a lawful guardian has given a person consent to drop the child at school, the consent will be valid for all the things necessary to take the child to school and a completely unrelated act will not be able to be defended through the consent. So, if suppose the person takes the child to a different city or a movie, the consent would not cover the said act and the person may be charged under Section 363 of the Code.
Issues raised in S. Varadarajan vs. State of Madras (1964)
The issue that arose before the Apex Court is as follows:-
- Whether the acts done by the appellant (Varadarajan) fall within the ambit of the word “taking” used in Section 361 of the Indian Penal Code, 1860?
Arguments of the parties
Appellant
The appellant presented a two-pronged defence wherein, he contended as follows:-
- That, Savitri had herself abandoned the guardianship of her father thus, Savitri was not in the keeping of her lawful guardian and thus, the ingredients to sustain a charge of Section 363 are not met.
- That, the acts of the Appellant did not fall within the ambit of the term ‘taking’.
The Court accepted the second leg of the argument thus, the Court did not ponder upon the first leg of the argument. Thus, the Court focused on the ambit of the term ‘taking’ as used in Section 361 of the Code and the Court did not ponder upon the question of whether the minor himself can abandon the keeping of the guardian.
Respondent
The respondent’s arguments were primarily based on the findings of the High Court. The core of the respondent was that a minor can not abandon the keeping of the lawful guardians.
Dictum laid down by the court
The accused in the given case was acquitted by the Supreme Court as the Court observed that the acts of the accused would not fall within the ambit of the word “taking” as has been used in Section 361 of the Indian Penal Code as the accused merely allowed the minor to accompany him. It was the minor who set up a rendezvous, who asked the accused to get married, who followed the accused to the registrar’s office and to other cities thereon. This observation of the court assailed the main argument made by the prosecution and at the same time exemplified how the acts of the accused are insufficient to attract the charges under Section 363 of IPC. The detailed analysis of the judgement delivered by the court is given herein below.
The distinction between “taking” and “allowing a minor to accompany”
The Apex Court emphasised the crucial distinction between the act of “taking” a minor out of the guardian’s keeping and merely “allowing” a minor to accompany someone. These two expressions are not synonymous, and the Court cautioned against equating them with the same meaning for the purposes of Section 361 of the IPC. The Court acknowledged that there could be exceptional circumstances where the two concepts might overlap, but in general, they should be treated as distinct. In the given case, the Court observed that the child was not taken by the accused; rather, it was the child who voluntarily accompanied the accused and the accused merely allowed the child to do so.
The Court held that for the offence of kidnapping to be established, the prosecution must prove that the accused actively “took” or enticed the minor out of the guardian’s “keeping.” The mere fact that the minor subsequently accompanied the accused willingly is not sufficient to constitute “taking” under Section 361. There must be evidence of some form of inducement, persuasion, or active participation by the accused so that the minor forms an intention to leave the guardian’s custody.
The capacity of the minor to understand the consequences of their acts
The Court emphasised the importance of considering the minor’s capacity to comprehend the implications of their actions. If the minor is on the verge of attaining majority and possesses the ability to think for themselves and understand the consequences of their choices, their willingness to accompany someone carries more weight. In such cases, the mere act of the accused facilitating the minor’s desire or intention, without any prior inducement or persuasion, may not amount to “taking” under Section 361.
Active inducement or persuasion by the accused
The Court clarified that if the prosecution can establish that the accused actively solicited, persuaded, or induced the minor to leave the guardian’s custody at any stage, it would be sufficient to constitute “taking” under Section 361. Even if the accused did not play an immediate or active role in the minor’s departure from the guardian’s house, evidence of prior solicitation or persuasion by the accused could still lead to a conviction. The Court drew a parallel with English common law principles, which emphasise the importance of establishing active inducement or persuasion by the accused in cases of alleged kidnapping or abduction. The English common law principle was that the offence is of strict liability however, the word “taking” in itself involves intentional inducement to follow or intentionally overpowering the child to abandon the lawful custody of the guardian.
Distinction from cases involving married women
The Court highlighted the distinction between cases involving minors under Section 361 and those involving married women under Sections 497 and 498 of the IPC. While the word “taking” in Sections 497 and 498 may be given a broader interpretation to protect the husband’s rights, the same broad interpretation may not be warranted in the context of Section 361, which is primarily intended to protect minors and persons of unsound mind. The Court emphasised that the primary objective of Section 361 and related provisions is to afford security and protection to the wards themselves, rather than solely protecting the guardian’s rights.
Relevance of the minor’s mental attitude
The Court acknowledged that while the mental attitude or free will of the minor may be irrelevant in cases of enticement, it carries significance in cases involving the alleged “taking” of a minor. If the evidence suggests that the minor willingly accompanied the accused without any inducement or persuasion, the minor’s mental attitude and desire become relevant considerations. The Court cautioned against disregarding the minor’s free will or agency in such cases, particularly when they are on the verge of attaining majority and possess the capacity to make informed decisions.
Passive facilitation versus active inducement
The Court drew a distinction between the accused’s passive facilitation of the minor’s intention not to return to the guardian’s house and the accused’s active inducement or persuasion that led to the minor’s departure. Mere passive facilitation, such as taking the minor from place to place after they have willingly left the guardian’s custody, may not necessarily amount to “taking” under Section 361. However, if there is evidence of prior active inducement or persuasion by the accused, even if they did not physically take the minor from the guardian’s house, it could still constitute “taking” under Section 361.
Balancing protection and autonomy
The Court’s obiter dictum seeks to strike a balance between protecting minors from exploitation and respecting their evolving autonomy and decision-making capabilities, particularly when they are on the verge of attaining majority. The Court acknowledged that not every instance of a minor willingly accompanying someone should be automatically construed as kidnapping, as it may disregard the minor’s agency and ability to make informed choices. The dictum provides a nuanced approach, recognising the need to protect minors while also respecting their autonomy, especially when they are nearing the age of majority and possess the capacity to understand the implications of their actions.
Contextual application of the law
The Court’s obiter dictum emphasises the need for a contextual application of the law, taking into account the specific circumstances of each case. It acknowledges that a rigid or formulaic interpretation of the term “taking” under Section 361 may lead to unfair outcomes, particularly in cases involving minors on the cusp of adulthood who possess the capacity for independent decision-making. The Court’s dictum encourages a more nuanced and case-by-case analysis, considering factors such as the minor’s age, maturity, capacity for understanding, and the presence or absence of active inducement or persuasion by the accused.
The guiding principle for interpretation
The obiter dictum serves as a guiding principle for Courts in interpreting and applying the offence of kidnapping under Section 361 of the IPC. It provides a framework for distinguishing between cases where the accused actively induced or persuaded the minor to leave the guardian’s custody, and cases where the minor willingly accompanied the accused without any prior inducement. By emphasising the need for evidence of active inducement or persuasion, and considering the minor’s evolving capacities and autonomy, the dictum aims to ensure a fair and contextual application of the law, balancing the protection of minors with the recognition of their agency and decision-making abilities.
Conclusion
The Court in the case of S. Varadarajan vs. State of Madras (1964) does not lay down a new interpretation of the law; however, it clarifies the existing law penalising the offence of kidnapping and elucidates the application of the same on the facts of the case. Thus, it clarifies that ‘taking’ will not include the acts wherein the minor voluntarily accompanies the accused person. In the given case, the Court digressed from the plain and grammatical interpretation of the word “taking” and interpreted the word in the context of the provision. The Court also took into account the intent and understanding of the minor to form an opinion to follow the accused voluntarily.
Frequently Asked Questions (FAQs)
What is the difference between abduction and kidnapping?
The offence of abduction has been provided under Section 362 of the IPC, whereas the offence of kidnapping has been defined under Section 359 of the IPC. The main difference between the two offences is that abduction in itself is not an offence; rather, abduction has to be coupled with an intent to commit a further offence. For example, abduction with the intent to commit murder has been punished under Section 364 of the IPC, whereas the offence of kidnapping is an offence in itself, which is punishable under Section 363 of the IPC. Further, the offence of abduction is a continuing offence, whereas, the offence of kidnapping is not a continuing offence.
Which court has the jurisdiction to try the offence of kidnapping or abduction?
The offence of kidnapping is cognizable, non-bailable and generally triable by a judicial magistrate of the first class; however, the nature and competence of the court to try in cases of abduction will depend on the penal provision in which the offence is being charged. Further, sub-section (2) of Section 181 of the Code of Criminal Procedure, 1973, provides that the court within whose jurisdiction the victim is kidnapped, abducted, conveyed, concealed, or abducted can try the case of kidnapping or abduction.
Where has the offence of kidnapping been provided in the Bhartiya Nyaya Sanhita, 2024?
Sections 359, 360, and 361 have been replaced by Section 135 of the Bhartiya Nyaya Sanhita Bill of 2023. The contents of all three provisions have now been consolidated under one common provision. The Home Minister of India, Hon’ble Mr. Amit Shah, explained in his speech while introducing the bill for the given law that the new legislation aims to place the provisions relating to offences against the body before the offences against the state, unlike the earlier Code. Thereby, the given section is renumbered to Section 135 in Chapter VI.
References
- https://blog.ipleaders.in/kidnapping-and-abduction-sections-359-to-374-under-ipc-1860/
- https://blog.ipleaders.in/difference-between-abduction-and-kidnapping/
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