Kidnapping from lawful guardianship: s. 361

•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. 

•‘lawful guardian’ includes person lawfully entrusted with care or custody of the minor/person (Explanation)

 

•Does not apply to a person, who in good faith,

–Believes himself to be a father of an illegitimate child

–To be entitled to the lawful custody of such child

Unless such act is committed for an immoral or unlawful purpose (Exception) 

Ingredients of S. 361

1.Taking or enticing away a minor or a person of unsound mind

2.Such minor must be under 16 for a male, under 18 for a female

3.Taking or enticing must be out of the keeping of the lawful guardian

4.And without the consent of the guardian 

1. Takes or entices any minor...

•Section is intended to protect 

–Minor children from being seduced for improper purposes and also 

–to protect the rights and privileges of guardians having the lawful charge or custody of their wards 

•Minor voluntarily goes ‘out of the keeping’ of her guardian – S. Varadarajan v. State of Madras, AIR 1965 SC 942 

–Accused had no role 

–If he merely allows her to accompany him, then he has committed no offence 

–Proof must of accused having done something which led to the girl going out of the keeping 

•Rights of minor are not contradictory to the rights of a guardian

–They both go together 

•Taking need not by force 

–Soliciting or persuading enough 

E.g. Promise of a marriage 

•Minor’s consent immaterial 

•‘Taking’ is complete as soon as minor is actually taken out of the custody of the guardian 

•‘Enticing’ - Dictionary: attract or tempt by offering pleasure or advantage 

2. Girl under 18, Boy under 16

•Accused did not know that girl was minor 

•From appearance he thought she was major 

•Bona fide and reasonable grounds to believe that she was major 

•Explanation: ‘Lawful Guardian’ 

–Any person lawfully entrusted with the care or custody of the minor 

–Even though the actual possession may be temporarily with a friend or any other person 

3. Out of the keeping of lawful guardian

•Keeping does not mean apprehension or detention but maintenance, protection and control 

•Not necessary that minor must be in a physical possession of the guardian; continuous control is not needed 

•Either minor is taken away or minor voluntarily leaves the guardian, then no longer in keeping 

4. Without the consent of the guardian

•Consent of minor immaterial 

•Man by false and fraudulent representations induces the parents of the girl to take her away, still kidnapping 

•Consent by guardian after the commission of the offence 

•Deep Chand v. State, 2000 Cr LJ 463 (Del): Two girls of 17-gone voluntarily-girls themselves persuaded the accused to take them away for an outing- whether offence?? 

• S. 359 – Kidnapping: Kidnapping is of two kinds : kidnapping from India, and kidnapping from lawful guardianship. 

 

• S. 360 - Kidnapping from India: Whoever conveys any person beyond 

–the limits of India without the consent of that person, 

–or of some person legally authorized to consent on behalf of that person, is 

•said to kidnap that person from India.