S.361 IPC | Merely Accompanying Minor Who Left Home Voluntarily Not Kidnapping From Lawful Guardianship: MP High Court

The Madhya Pradesh High Court has clarified that an adult merely accompanying a minor who has left home voluntarily of their own accord would not constitute the offence of kidnapping from lawful guardianship. For context, Section 361 IPC reads that any person who takes or entices a minor (under 18 years in case of females) out of the custody of a lawful guardian without the consent of said guardian would be guilty under the said offence. The bench of Justice Pradeep Mittal noted that the term "takes" under Section 361 IPC requires some active or positive conduct on the part of the accused, a voluntary and deliberate act, that results in a minor being removed from the custody of a guardian. The bench observed; "The word 'takes' in Section 361 IPC postulates some active and positive conduct on the part of the accused a voluntary and deliberate act by him that results in the minor being removed from the custody of the guardian. Mere passivity or acquiescence i.e., allowing a minor to accompany one of her own accord has been consistently held by the courts not to constitute 'taking' within the meaning of Section 361 IPC". The appeal was filed challenging the conviction order passed by the 2nd Additional District Judge sentencing the appellant to three years of rigorous imprisonment and fined ₹1,000 for allegedly kidnapping a minor female from her lawful guardianship. The incident in question occured on March 15, 2013, when the prosecutrix reportedly left her house early in the morning and travelled with the appellant across multiple locations. At the trial, the prosecutrix testified that she left her home voluntarily, informed her mother and accompanied the appellant willingly. She stated that the appellant did not use force, coercion or inducement, and she added that no wrongful or sexual misconduct occured. The Trial Court, however, acquitted the appellant of a more serious charge of Kidnapping under Section 366 IPC, but convicted him under Section 363 IPC on the ground that the prosecutrix was a minor and therefore her consent was legally irrelevant. In his appeal, the court examined the ingredients of kidnapping from lawful guardianship under Section 361 IPC, observing that "(i) The person taken or enticed must be a minor (under 18 years in the case of a female); (ii) The accused must have 'taken' or 'enticed' the minor; (iii) The taking or enticing must be out of the keeping of the lawful guardian; (iv) Such taking or enticing must be without the consent of the lawful guardian". Applying these principles to the facts of the case, the court found that the appellant did not actively take or entice the prosecutrix. The minor left the house of her own accord and voluntarily accompanied the appellant. The court empahsized, "the consent of the minor herself is rendered legally irrelevant by the express terms of Section 361 IPC, the requirement that the accused must have 'taken' or 'enticed' the minor out of the keeping of the lawful guardian is an independent and essential ingredient that must separately be established by the prosecution beyond reasonable doubt". Therefore, the bench held that the trial court erred by conflating two distinct and independent legal propositions. The bench noted that the irrelevance of a minor's consent cannot be used to fill the gap of the essential element of "taking" or "enticing". These are two distinct legal propositions. The court further observed that even if the evidence clearly establishes that the accused neither "took" nor "enticed' the minor, and that the minor herself left the guardian's custody, the offence under Section 361 IPC is not made out, irrespective of the minor's age. Thus, the bench concluded, "The finding of the Trial Court to the contrary is not supported by the evidence on record and is, in fact, contrary to the very findings of fact recorded by the Trial Court itself in the course of its judgment. The impugned conviction under Section 363 IPC therefore cannot be sustained". Thus, the bench allowed the appeal and set aside the conviction order. Case Title: Ravi Das Gupta v State of Madhya Pradesh, CRA-2321-2013For Appellant: Advocates Rajesh Kumar Tiwari and Ravendra ShuklaFor State: Government Advocate Ritwik ParasharClick here to read/download the Order

S.361 IPC | Merely Accompanying Minor Who Left Home Voluntarily Not Kidnapping From Lawful Guardianship: MP High Court

Jayanti Pahwa

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