Decided on June 09,1900



Francis W Maclean, K C I E C J - (1.) The question submitted to us by the learned Judges who referred this case is "whether the petitioner can be properly convicted under Section 363 of the Indian Penal Code of kidnapping from lawful guardianship, or whether, that offence being completed when she left the house and guardianship of her husband, he cannot under any circumstances be convicted of that offence."
(2.) The question perhaps is not very happily worded, for if the offence of kidnapping were completed when the girl left the house, which means I suppose when,--to follow the language of Section 361,--she was taken or enticed out of the keeping of her lawful guardian without his consent, and if, as is conceded, the accused had nothing to do with the actual taking or enticing out of the keeping of the lawful guardian, and did not appear upon the scene until some three weeks after the actual taking or enticing away, and that what he then did,-- according to the finding in the reference,.--was to join in taking her to Calcutta for the purpose of making her lead the life of a prostitute, I fail to see how the accused could be properly convicted under Section 363. But though the question has been so framed, the case has been argued before us upon the footing that the taking or enticing was not completed when the accused joined in taking the girl to Calcutta, and that the taking and enticing out of the keeping of the guardian was a continuous act, and that the accused took part in that continuous act, and therefore is liable to conviction under the section I have mentioned. I will deal with the case on this footing.
(3.) Now, what is the definition of kidnapping, for we are dealing only with the question of whether the accused can be properly convicted of that offence? Section 361 thus defines it, "Whoever takes or entices any minor under fourteen years of age if a male, or under sixteen 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.";

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.