This article is written by Khyati Basant, pursuing BBA LLB from Symbiosis Law School, NOIDA. This article consists of brief laws of guardianship and takes into consideration the case of kidnapping.  

Introduction

A careful reading of the concept above will show that the “taking” or “removing” a minor from their legal parent is beyond doubt an integral component related to the offence of  abduction. This note is specifically intended to explore the idea of “taking.” The word “taking” means “letting go, escorting or entering into possession.” 

Section 361 of the Indian Penal Code, 1860 describes the crime of being kidnapped from legal guardianship, as anyone who takes or entices any minor under seventeen years in turn of a male and eighteen years for a female, or any person of an unhealthy mind, without the permission of such guardian, is said to be kidnapped from the legal guardianship of such a minor or person of an unhealthy mind.

Essentials for kidnapping 

Some of the following essential must be followed for the process of kidnapping : 

  1. Taking or enticing: The term ‘takes’ means allowing with or without the use of force to move, escort or fall into possession. Taking doesn’t need to consist of a single act. A whole series of acts could together constitute the process of taking; the act is complete only when the minor is out of his legal possession of his guardians. When the accused takes the minor away with him, the act of taking is complete whether he was willing or not. The word ‘entice’ involves an idea of inducement in the other through exciting hopes or desires. It means the child is seduced or attracted to go with the accused. The minor’s mental attitude is relevant in the enticement. The promise of marriage made to the minor girl for leaving the lawful guardian’s house shall be regarded as an enticement. The distance to which minor is being taken is also immaterial. If the accused removes the keeping of the legal guardian without the guardian’s consent and returns to his house after a minor return sometime, the accused shall still be held liable for the offence.
  2. Without the guardian’s consent: The child’s consent is completely irrelevant and it is the guardian’s consent alone that is taken into consideration because the child is deemed unable to give valid consent. The consent of the guardian given under this section should not be under fraud or misrepresentation and must be free. The convicted party shall also be responsible for the crime if the guardian consents after the crime is committed. It should also be noted that kidnapping is a strict liability offence i.e. the accused’s intention is immaterial. Thus, even if the accused took a minor out of the guardian’s keeping for a good cause, he is still liable for the kidnapping offence. 
  3. Out of keeping the rightful guardian: The word ‘keeping’ means within the guardian’s protection or care. The minor needn’t be in the guardian’s physical custody. It connotes the idea of charging and safeguarding whether real or constructive. A child may not always be in the guardian ‘s direct physical custody, but as long as the child’s whereabouts are known and the child’s movement is controlled, he is said to be in the guardian ‘s care. The child is said to be kidnapped when a child is taken to such an area outside the circle where the guardian no longer knows the child’s whereabouts nor any control over his moves.

Kinds of kidnapping 

The Indian Penal Code, 1860 codified kidnapping as a criminal offence. Section 359-363 addresses the kidnapping offence. Kidnapping is the unlawful removal or transfer of an entity and the unjust confining of the person against his or her will. Kidnapping simply means “child theft,” but the crime was not limited strictly to the taking of babies. It is an aggravated form of improper confinement. Section 359 deals with the kinds of Kidnapping- kidnapping from India and kidnapping from lawful guardianship.

As per Section 360, Indian kidnapping means, “Whoever transmits any person beyond the boundaries of India without the consent of that person or of any person legally authorized to consent on behalf of that person shall be said to kidnap that person from India.” Section ingredients: Person shall be transmitted beyond the boundaries of India, and such transmission shall be without the consent of that person or of any person legally authorized to consent to such transmission. Section 363 provides for punishment for kidnapping from India.

According to Section 361, kidnapping from lawful guardianship means, whoever takes or entices any minor under (sixteen) years of age if, without the permission of any guardian, a male or under-(eighteen) year of a child, or any adult of unsound mind, is said to have kidnapped any minor or adult from legal guardianship. The purpose of this section is to protect minors and unsound minded persons from being exploited and to protect the rights of guardians who have their wards’ lawful charge or custody. And the key component in this segment is the lack of parents’ or guardian’s approval.

The laws of guardianship in kidnapping 

  • To entail taking a minor’s consent is immaterial and requires neither coercion nor fraud. It was held that it is not appropriate to show that the accused would intend to make improper use of the minor and that the offence consisted of violations of the guardian ‘s rights. Section 361 of the Indian Penal Code, however, is intended to protect minors and persons of an unhealthy mind rather than the rights of such persons’ guardians. 
  • Therefore, this does not justify as broad an interpretation of the term “taking” as annexed to Section 498 of the Indian Penal Code, which is intended primarily to protect the rights of the husband rather than the woman. This proposal can be adequately illustrated as in which a person who gave in to a married woman’s requests was found guilty of taking or attracting such a woman for the purposes set out in Section 498 of the Indian Penal Code. Consequently, it follows that the definition of taking concerning abduction offences requires careful analysis. 
  • The recent decision of the Supreme Court in Varadarajan v. Madras State is elaborate. A senior graduate student who has lived her life in a metropolitan city, Mudholkar, J. observed, is not an unsophisticated person and is much more able to think for herself and act independently than maybe an unlettered rural person. It was at the Supreme Court that the appeal by Varadarajan was heard on a point of law with approval. The crucial issue that emerged for the verdict was whether the accused was guilty of the abduction act in which the minor claimed to have been kidnapped by the accused person luckily abandoned her father’s safety and was able to realise the full meaning of what she was doing, thereby joining the accused willingly.
  • This brings in the similarly critical issue of whether the minor will leave his or her own guardian’s guardianship. It has been held that a minor can not be found to have left a guardian of her own accord for offences under section 498 of the Indian Penal Code. When she enters the accused person’s custody, he may be convicted of an offence under section 498, even in the absence of evidence of the accused’s overt act.
  • The accused shall be guilty of an act which, in law, must amount to “taking.” In the Kerala case named as V.K. Rajappan v. State Of Kerala, it was noted that the accused must commit an act which may be regarded as the proximate cause of the person leaving the guardian as he did. While commenting on this rule of law, the Supreme Court held in Varadarajan that the mere circumstance that the accused’s act was not the immediate cause of the girl leaving the protection of her father would not absolve him if he had solicited her at an earlier stage or induced her to take the step in any way.
  • It has also been explained in Biseswar Misra v. The King, that mere passive consent on the part of a person to give shelter to the minor does not amount to taking or seducing the minor, but to actively bring about her stay in the house by playing on her weak and hesitant mind is equivalent to taking the girl within the meaning of section 361, Penal Code.
  • Although “taking” is essential to constitute an offence of kidnapping, it is not necessary to carry out actual physical removal of the girl; it is sufficient if he persuaded her either to leave her house at the time she left earlier or to leave with her by persuasion. Where a minor girl leaves her father’s house without any coercion, incitement, or blandness held by a man to her, such that she has gone relatively far from home, and then goes to him, while it may be his moral obligation to return her to the custody of her parent, but his inability to do so is not a violation of this Parliament Act, for the Act does not state that he will restore her, but rather that he does not restore her. This suggests an offence only exists when the accused “takes” the minor out of the lawful guardian ‘s custody. There would be no responsibility whatsoever if the perpetrator did not restore the minor to her guardian, or even “used to warn her not to come or stay, and then shelter her. 
  • A critical study of the Supreme Court’s decision-making ratio in Varadarajan reveals that a person would not be guilty of an abduction offence if he only played a part that facilitated the fulfilment of the minor girl’s intention to leave the house of her guardian or the house where her guardian had kept her. The Court noted that “taking” or seducing a minor out of keeping a lawful guardian is an essential ingredient of the kidnapping offence. On Savitri’s part, there was no suggestion she left her father’s home or her relative’s house at her lover’s instance. 
  • By complying with her wishes, Varadarajan can not be said to have taken her out of the keeping of her lawful guardian by any stretch of the imagination. After the agreement was registered, both Varadarajan and Savitri lived as husband and wife and visited various places; there was no suggestion in Savitri’s evidence that she had been made to accompany him with threats or blandishment administration. 
  • There was no suggestion in Savitri’s evidence that the administration of threats or blandishments made him accompany him. The fact that she accompanied him all along was quite consistent with Savitri’s own desire to be his wife, in which, of course, the desire to accompany him wherever he went was implicit. In these conditions, the Court found nothing on which to conclude that Varadarajan had been accused of “taking away” Savitri on her father’s holding. 
  • No doubt, the part he played could be considered to have facilitated the fulfilment of the girl’s intent. That part, however, falls short of the inducement of a minor to slip out of her lawful guardian ‘s custody and thus does not amount to taking. Consequently, the true import of Varadarajan appears to be that the accused must be instrumental in the formation of an intent to leave the guardian in the mind of the minor. This statement can be supported by the view of the Supreme Court that “the accused person was an element of persuasion that led to the to hold the accused guilty of taking under section 361 of the Indian Penal Code, a girl’s willingness is expected.
  • Kidnapping offences are intended to protect the interests of the minor and not the interests of the guardians. Gajendragadkar, J., clearly states that. In the case of State v. Harbansing, the “mental attitude of the minor is irrelevant in the case of taking. If the minor girl takes all the necessary steps to leave her guardian, it implies that she does so by her own” free will “or consent. Furthermore, in all cases where the perpetrator requires a minor girl to follow him, knowing full well that she is under the security of a lawful guardian, it can be assumed that he “takes” the person specifically to “take” her indirectly, but it can not be confirmed. Such take should be treated as ‘implicit taking’ without which the minor girl’s intention to leave her guardian could not have been fulfilled.

                 

Conclusion 

In conclusion, it may be stated that the word “taking” can be interpreted to include all cases of a person’s indirect inducements to affect the minor’s intent to leave the guardian. Determining who is taking the initiative isn’t of material importance. The accused’s subsequent assistance in carrying out the intent of the minor to leave her guardian is a “taking.” It may be recalled that the law, by providing that the “mental attitude of the minor is irrelevant in the case of taking,” recognises that the minors are unable to make an independent judgment in respect of their actions.

References

 


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