- Introduction:
Minors are considered incompetent to take their decisions and they are put under the protection of their lawful guardian. Section 361 has been incorporated in the Indian penal code for the protection of minors. This ‘case comment’ attempts to throw light on the various aspects of S. Varadarajan v. State of Madras case judgement. It must be noticed that this case delineates the underlying principles of ‘taking, ‘enticing’, and ‘age of discretion’ in an exhaustive manner. The core issue is analyzed whether the accused’s action would be considered as taking away the minor out of the keeping of her lawful guardian. In a case where a minor left his/her house knowing and having the capacity to know the full import of what she/he was doing (attained the age of discretion 16-18 years) and the minor did all the acts wilfully so the person to whom he/she joined cannot be held guilty of the offense of kidnapping.[1]
The name of the accused was Varadarajan. He was a resident of the house next to that of S. Natarajan. He became a friend of Savitri who was the daughter of S. Natarajan. Both of them used to talk together from their respective houses. Many a time, Rama, her sister, saw them carry on a conversation with each other. On 30th September 1960, She again witnessed them chatting with each other at 9 A.M. She questioned Savitri about it. Savitri replied that she desired to marry Varadarajan. On a similar day, Rama narrated the whole events and Savitri’s intention to her father when he arrived at around 11 A.M. Natarajan, their father, asked her about this matter. Upon being questioned, Savitri did not say a single word about it and started crying. Moreover, on a similar day, Natarajan took Savitri to Kodambakkam and left her at the house of K. Natarajan who was his relative. Basically, this step was taken to keep her far away from Varadarajan as much possible.
On first October 1960, Savitri left K. Natarajan’s house at around 10 A.M. without informing anybody. She called Varadarajan and told to meet her on a certain road in that particular locality. When she reached there, Varadarajan arrived at that place in his car. She willingly got into the car. He drove towards the house of Sami at Mylapore. They intended to take Sami along with them to the Registrar’s office as a witness of their marriage. After that, all three reached the shop of Govindarajulu Naidu in Netaji Subhas Chandra Bose Road. Savitri selected two guns and Tirumangalyam and Varadarajan purchased them. Later on, they moved towards the registrar’s office. In office, formalities related to the marriage were performed and Varadarajan and Savitri entered into the agreement of marriage which was duly registered. After that, he requested Savitri to wear the articles of jewellery which were purchased at Naidu’s shop. She wore them accordingly.
Meanwhile, in the evening, On 1 October, K. Natarajan again went to the house of S. Natarajan and he found that her daughter was missing as she did not return the house after leaving it from the morning. K. Natarajan and S. Natarajan went to various places to look for her but all efforts were proved in vain.
Eventually, S. Natarajan lodged a complaint in Nangumbakkam Police Station about missing of her minor daughter.
After documentation, Savitri and Varadarajan went to Ajanta Hotel and spent there a whole day. On the very next day, before going to Sattur, he bought some sarees and blouses for Savitri and they spent a couple of days in Sattur. On 4 October, they moved towards o Sirukulam where they stayed for 10 or 12 days. Thereafter they went to Coimbatore and then Tanjore. Finally, police caught them in Tanjore acting on the complaint filed by S. Natarajan.[2]
- Background:
The accused, varadarajan, was charged with the offence of kidnapping a minor girl, Savitri, from the lawful possession of her guardian. In this case, the main issue was that whether the accuse’s action would be considered as “taking” the minor out of the keeping of the lawful guardian. To answer this question, it is necessary to analyze the offence of “kidnapping from lawful guardianship” properly in the light of provision mention under the Indian penal code. The offence of “kidnapping from lawful guardianship” is defined under section 361 of the Indian penal code, 1860.
“Section 361. Kidnapping from lawful guardianship–
(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.)
Explanation. The words lawful guardian in this section includes any person lawfully entrusted with the care or custody of such minor or other person.
Exception. This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child unless such act is committed for an immoral or unlawful purpose.”[3]
On the critical perusal of this section, it becomes evident that the essential ingredients of the section are:[4]
(I) taking or enticing away a minor or a person of unsound mind;
(ii) The minor must be under the age of 16 and 18 years in the case of male and female respectively;
(iii) The taking or enticing away must be out of the keeping of the lawful guardian or parental custody of such minor or person of unsound mind;
(iv) Such taking or enticing away must be without the consent of such guardian.
All these essentials are required to convict a person under section 361 for the offence of kidnapping.
It is argued that it is established that on October 1st 1960 Savitri was minor as her date of birth was November 13, 1942. When Savitri got into the car of Varadarajan and went away with him so the act of Varadarajan was one which caused the minor to go out of the keeping of her lawful guardian. Moreover, she went with the accused without obtaining the consent of her guardian hence all the ingredients of the offence are satisfied and Varadarajan must be held guilty of committing the crime of kidnapping.[5]
On the other hand, the deposition recorded by Savitri has not revealed any enticement, persuasion, and compulsion and she herself left K. Natarajan’s house. Furthermore, she plainly acknowledged that on the morning of October 1st, it was she who telephoned the appellant to meet her in a certain place and decided to go with him in his car. Moreover, she herself insisted to go to the registrar office to register their marriage agreement. There was no instance of use of force or blandishments on the part of the accused. Analysing all these issues, the Supreme Court held that it cannot be found the accused had taken away from her lawful guardian or enticed to come with him. Hence Varadarajan must be acquitted.[6]
In the light of all the facts, evidences and circumstances, the judgement delivered by the Supreme Court is very appropriate As protection of the minors and the persons of unsound mind and the right of guardians of such persons is the most important objective of this provision. Furthermore, seduction or abduction of a minor must be prohibited.[7] While analyzing this issue, in State v. Harbansing Kisansing, justice Gajendragadkar rightly recapitulated the aim of this provision as “It may be that the mischief intended to be punished partly consists in the violation or the infringement of the guardians’ right to keep their wards under their care and custody; but the more important object of these provisions undoubtedly is to afford security and protection to the wards themselves.”[8] it is axiomatic that gravity of the crime of kidnapping is determined by the ‘taking’ or ‘enticing of a minor under the specified age out of the keeping of the lawful guardian. Taking away and enticing a minor who is under the lawful guardianship is an essential ingredient of the offence of kidnapping. Under section 361 of the I.P.C. 1860, the expressions ‘take’ and ‘entice’ are comprehend together so that each takes to some extent its colour and content from the other. The statutory language makes evident that if a minor leaves her/his parental house without any under influence of promise or inducement than another person cannot be held guilty.[9]
It is to be noted that ‘taking’ and ‘allowing’ a minor to accompany a person are not regarded as the same thing. The implied idea of taking away is very different from allowing a minor to accompany. Subba Rao, C.J. stated that the word ‘take’ in S. 361 meant to cause to go to escort or to get into possession.[10] Furthermore, Taking away means certain active role on the part of the accused in making the minor to keep out of the lawful guardian. On the other hand, Enticement means inducement or pursuance by offer of pleasure or some other form of temptation. It may produce an immediate result or it may be a continuous process ultimately achieves its purpose of successful inducement.[11]
The expression “taking out of the keeping of the lawful guardian” involves the idea that there must be any act done by the accused which may be regarded as the proximate cause of the person going out of the keeping of the guardian.[12]
In this case, Varadarajan’s act cannot be considered as ‘taking away’ the minor and he whatsoever did not entice or induced Savitri. As some kind of inducement and active participation to change the mind-set of a minor to leave her/his house should be present to hold the person guilty of kidnapping. But, Savitri herself left the house without the active help of the accused.[13] Moreover, All the facts and circumstances showed that she willingly accompanied Varadarajan and the law does not make obligatory to any person to cause to return minor to his/her house or telling her/him not to accompany him. Hence, it would not be reasonable to hold Vradarajan guilty for not performing such actions. Although, the actions of the accused could be regarded as facilitating the fulfillment of the intention of the girl those acts cannot be deemed to be ‘taking away’ of a minor out of her/his lawful guardian. At this juncture, certain cases need to be analyzed to understand this point in a holistic manner.
In the case of State of Haryana v Raja Ram[14] The issue was discussed whether the act of accused would amount to taking away the minor or not since she willingly accompanied him. In the view of the Supreme Court, taking or enticing is not necessarily shown to have been by means of force or fraud. Such a kind of persuasion that would create willingness on the part of the minor shall be sufficient to hold guilty.
Chathu v. P. Govindan Kutty[15] In this case, the daughter of the complainant was seen with the respondent going along the road towards the respondent’s house. Later on, she was seen in his house again. But, the court held that Being fellow-pedestrians on one and the same public thoroughfare, it cannot be argued that the respondent had taken away her out of the lawful possession of her father as he did not induce her and the girl went away with him willingly.
In the case of Chhajju Ram v. State of Punjab[16] The court held that In order to prove an offence under section 361, the prosecution must show that the accused took some active part in the girl’s leaving her lawful guardian’s custody and taking shelter with him.
It is apparent that the most important ingredient to establish that an offence of kidnapping is the minor should have been “taken” by the accused. On this point, the legal position is that if a minor willingly leaves the house of her/his guardian and went out of the house. The minor comes across another and that person treats him/her very benevolently and kind-heartedly so that person cannot be held liable for the offence of kidnapping.[17]
It can be argued that even the accused did not persuade her at the time of the leaving of house, he might have done earlier. In this regard, a famous judgement of the court needs to be analyzed at this point. In the case of T.D. Vadgama v. State of Gujarat[18] the accused was charged for kidnapping a girl below 15 years. It was proved that the girl was solicited or persuaded by the accused at the earlier stage to leave her father’s house. The Supreme Court held that it is true that the accused act was not the immediate cause of her leaving her parental custody, but it would constitute no valid defence as the act of accused gave rise to hope or desire in the mind of the minor.
But, in the given case, there is no such evidence to prove such solicitation done by Varadarajan. Hence, holding him guilty of an offence of kidnapping would not be fair.
In addition, in the eye of the law, a person aged 16 years or older to have attained the age of discretion and that person is capable of understanding the consequences of their actions. It must be noticed that Savitri had attained the age of discretion and had knowledge about what is good or bad for her. As she was on the verge of attaining the majority and was a college-going girl, it can be understood that she was able to think and make decisions for herself. She was not a child of tender years.[19]
This concept can be better understood in the light of the judgement delivered in the Prawn Prakahar & Anr. vs State Govt. Of NCT of Delhi & Anr, in this judgement, a case was filed by the father of the minor who was between 17 and 18 years alleging that her daughter was kidnapped by the petitioner. But, she was on the verge of obtaining majority hence the accused can not be liable as the girl had obtained the age of discretion and the accuse had not enticed or persuaded her.
4.1 True essence of the statute was interpreted:
It can be argued that this judgement has defeated the true intent of the legislature. But, analysing this argument, it must be understood that this section aims to protect the rights of the minors. This section is not solely based on the idea of protection of the rights of guardians. Minors are regarded as incompetent to take well-thought decisions hence they are put under the protection or possession of their guardians. But, in the cases where the minor has attained the (age of discretion) and is capable to take decisions for her/him so his/her voluntarily going with another person who has not induced him/her by any means cannot render that person guilty of kidnapping.
4.2 Various policy implications of the judgement:
After approximately 55 years of the judgement, the government of India has endorsed a similar view in the case of minors who have attained the ‘age of discretion’. It is worthy to mention here that recently Seeking restraint against filing FIR of kidnapping when girl went voluntarily, the famous lawyer Jaising expressed the view of the central government in his written submission in the Supreme court “It may be necessary to interpret the provisions of Sections 361 and 366 in a manner which does not result in harassment of girl above the age of 16 years who marries against the wishes of her parents”.[20] It is an established fact that honour killing generally takes place in cases where girls, age group of 16-18, choose to marry against the customs of the family and communities. The central government argued that this section has been as a tool of harassment for eloping and marrying against the wishes of parents or the community. [21] Several cases like Lajja Devi v. State (2012) and Manish Singh v. State Ors.[22], throw some light on the underlying principle of this issue and maintain that the girls who had allegedly been kidnapped were minor on the date of kidnapping but were on the verge of attaining majority had claimed that they had gone with the accused on their own accord. The accused cannot be held guilty of the offence of kidnapping as she had gone with the accused on her own free will and the accused had not induced her or played any fraud upon her.
Outlining the objective of section 361 of the Indian penal code, 1860, Gajendragadkar, J. rightly recapitulates “It may be that the mischief intended to be punished partly consists in the violation of the infringement of the guardians’ right to keep their wards under their care and custody, but the more important object of these provisions undoubtedly is to afford security and protection to the wards themselves.”[23] In the case of S. Varadarajan v. State of Madras, the girl had attained the (age of discretion) and there was no evidence or fact to prove that Varadarajan enticed her by anyway, so he cannot be liable for committing the offence of kidnapping. This judgement has left indelible impact on the issues related with kidnapping. Such interpretation of the section reveals the true intent of the legislature.
[1] S. VARADARAJAN v. State of Madras AIR 1965 SC 942.
[2] Supra note 1.
[3] THE INDIAN PENAL CODE, 1860, ACT NO. 45 OF 1860.
[4] PSA Pillai, Criminal Law, LexisNexis, Hariyana, 11th edition.
[5] Supra note 1.
[6] Ibid.
[7] K.D. Gaur, text book on Indian Penal Code, Universal Law Publishing Co. Pvt. Ltd., New Delhi, Fifth Edition.
[8] AIR 1954 Bom 339.
[9] Supra note 4.
[10] In Re: Khalandar Saheb vs Unknown AIR 1955 AP 59.
[11] Supra note 4.
[12] Abdul Sathar v. Emperor AIR 1928 Mad 585).
[13] Supra note 1.
[14] 1973 AIR 819.
[15] AIR 1958 Ker 121.
[16] A.I.R. 1968 Punj. 439.
[17] Nura and Others v. Rex AIR 1949 All 710.
[18] 1973 AIR 2313.
[19] Supra note 1.
[20] Dhananjay Mahapatra, ‘Centre against FIR for kidnapping if girl weds voluntarily’, Times of India, 2 March 2013, Available at
https://timesofindia.indiatimes.com/india/Centre-against-FIR-for-kidnapping-if-girl-weds-voluntarily/articleshow/18758514.cms (Visited on 4 Nov, 2018).
[21] Ibid.
[22] AIR 2006 Delhi 37.
[23] Supra note 8.