S. Varadarajan v. State of Madras
Supreme Court of India, 9 September 1964, 3 judges, 1965 AIR 942, 1965 SCR (1) 243
The Court acquitted the appellant of kidnapping under Section 363 IPC, holding that merely allowing a minor girl who voluntarily left her guardian's protection to accompany him is not "taking" her out of lawful keeping under Section 361.
Facts
The minor daughter of S. Natarajan, a second year B.Sc. student who was close to majority, became friendly with the appellant, a neighbour, and told her sister she wished to marry him. Her father left her at a relative's house to keep her away from him. The next morning she left that house, telephoned the appellant to meet her on a road, and got into his car of her own accord. They had an agreement to marry registered at the Registrar's office and then travelled together to several places until the police found them at Tanjore on a complaint of kidnapping by the father. The Presidency Magistrate convicted the appellant under Section 363 IPC and sentenced him to one year's rigorous imprisonment; the Madras High Court affirmed. He appealed by special leave.
Questions before the Court
- Did the appellant "take" the minor out of the keeping of her lawful guardian within the meaning of Section 361 IPC, when she left on her own and joined him?
- Is a wide meaning of "taking" adopted under Sections 497 and 498 IPC to be applied to Section 361?
What the Court held
- Taking or enticing a minor out of the keeping of a lawful guardian is an essential ingredient of kidnapping. Though the girl had been left at a relative's house, she remained in her father's lawful keeping.
- There is a distinction between "taking" a minor and allowing a minor to accompany a person. Where a minor, knowing and having capacity to know the full import of what she is doing, voluntarily leaves her guardian's protection and joins the accused, he does not take her out of the guardian's keeping.
- Something more must be shown: an inducement by the accused, or his active participation in forming the minor's intention to leave. It is also enough if at some earlier stage he solicited or persuaded her to leave, even if he played no active part immediately before she left.
- Helping the minor, after she has left, in her design not to return, by taking her from place to place, only facilitates her intention and is not "taking". The law did not oblige the appellant to take her back or tell her not to accompany him.
- Sections 497 and 498 protect the husband's rights, while Section 361 is meant more for the protection of minors themselves, so there is no reason to give "taking" in Section 361 a wide meaning. The conviction and sentence were set aside.
Why it matters
The judgment sets out when a person in whose company a minor is found can be said to have "taken" her out of lawful guardianship under Section 361 IPC. It distinguishes taking from merely allowing a minor to accompany the accused, requires inducement, solicitation or active participation, and explains that an earlier solicitation suffices even if the accused was not the immediate cause of the minor leaving. The Court left open whether a minor can abandon guardianship.
In the Court's words
Copied from the official judgment; each passage links to its page.
“It must, however, be borne in mind that there is a distinction 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 circumstance can the two be regarded as meaning the same thing for the purposes of s. 361 of the Indian Penal Code.”
“We would limit ourselves to a case like the present 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 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 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.”
“No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our 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".”
“It must 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.”
Provisions interpreted
- Section 361, Indian Penal CodeNow: BNS 137(1)(b) (NCRB correspondence table)
- Section 363, Indian Penal CodeNow: BNS 137(2) (NCRB correspondence table)
Case and bench
- Parties
- S. Varadarajan v. State of Madras
- Case
- Criminal Appeal No. 46 of 1963
- Decided
- 9 September 1964
- Bench
- Mudholkar, J.R., Subbarao, K., Hidayatullah, M.
- Opinions
- Unanimous. The Judgment of the Court was delivered by Mudholkar, J.
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