Introduction

• This is a landmark case of kidnapping of minor where the court defined the meaning of ‘taking away’ and allowing a minor to accompany.

Facts

• In 1960, there was a man named S. Natarajan living in Nungumbakkam with his wife and two daughters, Rama and Savitri.
• Savitri became friends with a guy named Varadarajan (appellant) a few months before 30^th September 1960, who lived in the house next door to theirs.
  • Savitri and Varadarajan used to talk to each other from their houses.
• On 30^th September 1960, Rama saw them talking to each other like this at around 9:00 A.M. She saw them talking on previous occasions too.
• So, she asked Savitri why she was talking to Varadarajan. Savitri told her that she wanted to marry Varadarajan.
• Rama told her father about Savitri's intention, but he strongly disagreed with their relationship.
• On the same day, Natarajan took Savitri to Kodambakkam and left her at a relative's house to keep her away from Varadarajan as much as possible.
• The next day, Savitri left her relative's house around 10:00 A.M. and called Varadarajan, asking him to meet her on a certain road in the area. She went to that road herself.
• When she arrived, Varadarajan was already there in his car. She got into the car, and they went to a friend's house with the plan of taking that friend with them to the Registrar's office to witness their marriage.
• However, they could not register their marriage. Though, they started living together as if they were husband and wife.
• They travelled to Coimbatore and then to Tanjore.
• In Tanjore, the police found them while investigating a complaint made by Savitri's father, who accused Varadarajan of kidnapping her.
• The High Court after considering the material facts of the case convicted the appellant for kidnapping and granted him one year of rigorous imprisonment.
• The Accused appealed against his conviction to the Supreme Court by way of a Special Leave Petition under Article 136 of the Constitution of India, 1950.

Issues Involved

• Whether a minor can abandon the lawful guardianship by his/her own choice?
• Whether taking or enticing has been established in this case or not?

Observation

• The court said that it must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person.
• In cases 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 the court does 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.
• In the Court’s opinion 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 Court’s 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".

Conclusion

• It is clear from the above observations of the SC that if the accused played some role at any stage by which he either solicited or persuaded the minor to abandon the legal guardianship, it would be sufficient to hold such person guilty of kidnapping.
• It is on the basis of the finding that minor Savitri walked out of the house of her guardian without any inducement from the accused, the SC came to the conclusion that the accused in that case was not guilty of the offence.
• The Court held that no offence under Section 363 of IPC has been established against the appellant and that he is, therefore, entitled to acquittal. 

Note:

• Section 361 of Indian Penal Code, 1860- Kidnapping from Lawful Guardianship

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.

Explanation. —The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person.

Exception. —This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

• Section 363 of Indian Penal Code, 1860- Punishment for kidnapping

Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

• As Justice Gajendragadkar (as and then he was) has rightly observed in State v. Harbansingh Kiansingh (1954)

"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."