THE CONCEPT OF "TAKING" IN RELATION TO THE OFFENCE OF KIDNAPPING

Author(s): P. Seshadri
Source: Journal of the Indian Law Institute, Vol. 7, No. 4 (OCTOBER-DECEMBER 1965), pp.
399-404
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43949856
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 THE CONCEPT OF " TAKING " IN RELATION TO THE
OFFENCE OF KIDNAPPING*

Section 361 of the Indian Penal Code, 1860, defines the offen
"kidnapping from lawful guardianship" as follows:
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 unsoun
mind, without the consent of such guardian, is said to kidnap such minor or
person from lawful guardianship.

A careful perusal of the above definition would reveal that "tak

or "enticing" away a * minor out of the keeping of a lawful guard
undoubtedly an essential ingredient of the offence of kidnapping.
note is intended mainly to examine the concept of "taking." The t
"taking" means "to cause to go, to escort or to get into possession.
order to constitute "taking" the consent of a minor is immateria
neither force nor fraud are required. 2 It has been held that it i
necessary to prove that the accused should intend to make an unla
use of the minor and the offence consists in the violations of the righ
the guardian.3 However, section 361 of the Indian Penal Code
intended more for the protection of the minors and persons of un
mind themselves rather than of the rights of the guardians of s
persons.4 This does not, therefore, justify as wide an interpretation of
term "taking" as is attached in relation to section 498 of the Ind
Penal Code,5 which is designed essentially for the protection of
rights of husband rather than the woman. This proposition c
adequately illustrated by a notable case,6 where a person who yie
to the solicitations of a married woman (notwithstanding that she
a temptress), was held guilty of taking or enticing away such wo
for the purposes stated in section 498 of the Indian Penal Code.
It follows, therefore, that the concept of "taking" in relation
the offence of kidnapping deserves special study. The recent Sup
Court decision in Var adar ajan v. State of Madras 7 deals with this

*V aradarajan v. State of Madras , A.I.R. 1965 S.G. 942.

1. Varadarajan v. State of Madras , A.I.R. 1965 S.G. 942, 947.
2. Queen v. Sookee, (1867) 7 W.R. 36.
3. Queen v. Gooroodoss Rajbunsee, (1865) 4 W.R. 7.
4. Cf. Gajendragadkar, J. (as he then was), in State v. Harbansing, A.I.R.
Bom. 339.
5. This section deals with the enticing or taking away or detaining with crimi-
nal attempt a married wòman.
6. Regina v. Kumaraswami , (1865) 2 Mad. H.C.R. 331.
7. A.I.R. 1965 S.G. 942.

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400 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 7 : 399

elaborately. A senior college student in the degree class, who has l

her life in a modern city, observed Mudholkar, J., is no unsophist
cated girl, and is far more capable of thinking for herself and acting
her own than perhaps an unlettered girl from a rural area.
When such a girl, just under eighteen, thought of leaving her home
her parents and decided to join her lover, it proved no bed of roses
them. For very soon, during their rendezvous, they were apprehend
and the young man Varadarajan was taken into custody and charge
with the offence of kidnapping the minor girl Savitri. The investiga
revealed the following: As neighbours they had been observed to car
on conversations with each other from their respective houses. One
the girl quietly confided to her elder sister, a medical student, that
wanted to marry Varadarajan. The elders who immediately got sce
of these developments resented the romance, and Savitri's moveme
were curtailed. She was removed to a relative's house far away.
The next day, however, she left the relative's place and telephon
Varadarajan, asking him to meet her on a certain road. By the tim
she got there herself, her lover had already arrived in his car. She g
into it and after buying a tirumangalyam from a goldsmith's shop, t
proceeded to the Registrar's office.
An agreement to marry was entered into between them then a
there, and was registered. She was then asked by the young man to w
the jewels. Then together, for the next ten days or so, they went to var
places by train before they were both apprehended by the police up
a complaint instituted by the father. Varadarajan was charged with
offence of kidnapping a minor girl, and convicted by the magistrate
the evidence disclosing the above facts, as stated by the two sister
among others, and was sentenced to one year's rigorous imprisonme
which was affirmed by the High Court.
It was in the Supreme Court that Varadarajan's appeal was heard
with success on a point of law. The important question that arose f
decision was whether the accused was guilty of the offence o
kidnapping where the minor alleged to have been taken by the accu
person lefc her father's protection knowingly and having the capacity
know the full import of what she was doing, thus, voluntarily joined th
accused.

This gives rise to the equally important question of whether the

minor can abandon the guardianship of his or her own guardian. It
has been held that for offences under section 498 of the Indian Penal
Code a minor cannot be found to have left a guardian of her own
accord. When she comes into the custody of the accused person, he
can be convicted of an offence under section 498, even in the absence of
proof of an overt act committed by the accused. In Ramaswamy v.
Raju9s it was stated that "A woman's free will, or her being a free agent,
or walking out of her house of her own accord are absolutely irrelevant
8. A.I.R. 1953 Mad. 333.

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1965] " TAKING " IN RELATION TO KIDNAPPING 401

and immaterial for the offence under S. 498."9 In this connection the
Supreme Court pointed out in Varadarajan that
Whatever may be the position with respect to an offence under that section
and even assuming that a minor cannot in law abandon the guardianship
of her lawful guardian... the accused person in whose company she is later
found cannot be held guilty of having taken her out of the keeping of her
guardian unless something more is established .10

Thus, the accused must be guilty of an act which must in law

amount to "taking." It was remarked in a Kerala case11 that the
accused must do an act which may be regarded as the proximate
cause of the person going out of the keeping of the guardian as
he or she did.12 While commenting on this statement of law, the
Supreme Court held in Varadarajan that "the mere circumstance that
the act of the accused was not the immediate cause of the girl leaving
her father's protection would not absolve him if he had at an earlier
stage solicited her or induced her in any manner to take this step."is
In other words, the minor's leaving the guardian must "in some manner
caused or brought about by something that the accused did."14 It
therefore, requires, "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."15 But it is
not necessary that the accused must play an active part immediately
prior to the minor leaving the guardian's house and it is sufficient in law
to hold the accused guilty if he had at "some earlier stage solicited or
persuaded the minor to do so."16 It follows, therefore, that where a
minor girl voluntarily leaves the roof of her guardian and, when out of
his house, comes across another who treats her with kindness, he cannot
be held guilty under section 361 of the Indian Penal Code.17 It has also
been explained, in Biseswar Misra v. The King ,18 "that mere passive
consent on the part of person in giving shelter to the minor does not
amount to taking or enticing of the minor... but... actively bringing about
of her stay in the house by playing upon her weak and hesitating mind
...amounts to his taking the girl within the meaning of section 361,
Penal Code."19

Similarly, even though "taking" is essential to constitute the offence

of kidnapping, yet actual physical taking away of the girl is not neces-
sary; it is sufficient if he persuaded her either at the time she left or
9. Id. at 335.
10. Supra note 1, at 946. [Emphasis supplied.]
11. Rajappan v. State of Kerala , (1960) K.L.T. 273.
12. Id. at 279.
13. Supra note 1, at 947.
14. Abdul Sathar v. Emperor , A.I.R. 1928 Mad. 585, 586.
15. Supra note 1, at 945.
16. Ibid.
17. Nura v. Rex., A.I.R. 1949 All. 710.
18. A.I.R. 1949 Or. 22.
19. Id. at 25-26.

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402 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 7 : 399

earlier to leave her house or to go away with him by persuasion or

blandishments.20 Where a minor girl leaves her father's house
without any persuasion, inducement, or blandishment held out to her by
a man, so that she has1 got fairly away from home, and then goes to him,
although it may be his moral duty to return her to her parent's custody, yet
his not doing so is no infringement of this Act of Parliament (24 and 25 Vict.
C. 100, S. 55) for the Act does not say he shall restore her, but only that he shall
not take her away.21

This suggests that an offence exists only when the accused "takes"
the minor from the custody of the lawful guardian. There would be
absolutely no liability if the accused did not restore the minor to her
guardian, or even "failed to advise her not to come, or to return, and
afterwards harboured her."22

A critical study of the ratio decidendi of the Supreme Court in

Varadarajan clearly reveals that a person would not be guilty of an
offence of kidnapping, if he merely played a part which facilitated the
fulfilment of the intention of the minor girl to leave her guardian's
house or the house where her guardian has kept her. The Court pointed
out that "taking" or enticing away a minor out of the keeping of a
lawful guardian is an essential ingredient of the offence of kidnapping.
There was no suggestion on the part of Savitri that she left her
father's home or her relative's house at the instance of her lover.
She herself telephoned him. Varadarajan, by complying with her
wishes, can by no stretch of imagination be said to have taken her out
of the keeping of her lawful guardian. After the registration of the
agreement, both Varadarajan and Savitri lived as husband and wife and
visited different places; There was no suggestion in the evidence of
Savitri that she was made to accompany him by the administration of
threats or blandishments. The fact of her accompanying him all along
was quite consistent with Savitri's own desire to be his wife, in which
the desire of accompanying him wherever he went was, of course,
implicit. In these circumstances, the Court found nothing from which
an inference could be drawn that Varadarajan had been guilty of
"taking" away Savitri out of the keeping of her father. No doubt,
the part played by him could be regarded as having facilitated the
fulfilment of the intention of the girl. That part, however, falls short
of the inducement to a minor to slip out of the keeping of her lawful
guardian and is, therefore, not tantamount to taking. In other words,
a person would be guilty of "taking" a minor girl from lawful guardian-
ship, if he held out to the minor, any inducement, persuasion or
blandishment to leave her guardian's house. It follows that a person
20. Rex v. James Jarvis , (1903) 20 Cox. G.G. 249.
21. Reg. v. Christian Olifir, (1866) 10 Cox. C.G. 402. [Emphasis supplied.]
22. 10 Halsbury, Laws of England 758 (3d ed. 1955).

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1965] " TAKING " IN RELATION TO KIDNAPPING 403

in order to be held guilty of "taking" must do some overt a

the minor to leave the house of the guardian. It is not nec
persuasion or solicitation must be made by the accused imm
before the minor leaves the guardian and it is sufficient if
persuaded or solicited at some earlier stage. The true import
rajan appears, therefore, to be that the accused must be in
in the formation in the minor's mind of an intent to leave t
This statement can be supported by the Supreme Court's vie
element of persuasion by the accused person which brough
willingness of the girl"23 is necessary to hold the accuse
"taking" under section 361 of the Indian Penal Code,
There is no doubt that the offence of kidnapping is int
protect the interests of the minor rather than the interests of
ians. It is clearly stated by Gajendragadkar, J. (as he th
the case of State v. HarbansingW1 4 that the "mental attitude of
is not of relevance in the case of taking."25 If the minor g
takes all the essential steps to leave her guardian, it implies t
so of her own "free will" or "consent." Further, in all cases
accused allows a minor girl to accompany him fully knowing
under the protection of a lawful guardian, though cann
to "take" such person directly may be said to "take" her
Such taking should be treated as "implied taking" with
the intention of the minor girl to leave her guardian
have been fulfilled.

Reg. v. Robins ,26 an English case, bears considerable similarity to

the Var adar ajan case. In this English case, the accused went in the
night to the house of the girl's father and placed a ladder against the
window, by which she descended and elòped with him. This was held
to be a "taking" of her out of the possession of her father, though she had
herself proposed the plan . The decision was identical where in a case the
girl left her home alone, by a preconcerted arrangement with the prisoner,
and went to a place appointed , where she was met by him, and then they
went off together without the intention of returning, since up to
the moment of her meeting with him she had not completely renounced her
guardian's protection.27 It may be suggested that a preconcerted
arrangement with the accused and meeting at the appointed place is
precisely what happened in the Varadarajan case.
In conclusion, it may be stated that the word "taking" can be inter-
preted so as to include all cases of indirect inducements made by a person

23. Supra note 1, at 947.

24. A.I.R. 1954 Bom. 339.
25. Supra note 1 , at 947.
26. (1884) 1 Car. & Kir. 456.
27. R. v. Mankietów , (1953) Dears. C.C. 159.

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404 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 7 : 399

to effect the intention of the minor to leave the guardian. It is not

material significance to determine who takes the initiative. T
subsequent assistance of the accused in accomplishing the minor's in
to leave her guardian constitutes a "taking." It may be recalled that
law by providing that the "mental attitude of the minor is no
relevance in the case of taking,"28 recognizes that the minors
incapable of forming an independent judgment in respect of their
actions.

In the light of the foregoing comments the doctrine of "taking,"

as formulated by the Supreme Court in relation to the offence of
kidnapping in Varadarajan , requires a definition so as to include the
concept of "implied taking" suggested by the Reg. v. Robins case.29
P. Seshadri*

28. Supra note 1, at 947.

29. Supra note 26.
* B.A., LL.M.; Junior Lecturer, College of Law, Osmania University, Hyderabad.

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