S.361 IPC | Minor's Consent Immaterial, Guardian's Consent Determining Factor In Kidnapping Cases: Kerala High Court Reiterates

The Kerala High Court last week reiterated that a minor's consent is irrelevant for the offence of kidnapping under Section 361 of the Indian Penal Code (IPC) and that it is the guardian's consent that determines whether the act falls within its scope. 

Justice K Babu added that the use of force or fraud is not necessary; even persuasion by the accused that leads to the minor willingly leaving the legal guardian's custody is sufficient to invoke the section. If the minor is moved out of the guardian's custody with their consent, without any fraud, force, or deceit, it still constitutes an offence under Section 361.

Special Public Prosecutor S.U Nazar appeared for the State in the case.

The Court was deciding a challenge against orders passed by the Additional Sessions Judge returning the final reports submitted in five separate cases with similar facts. These cases involved five minor girls leaving the care of their respective legal guardians with five different men to different locations. The accused had been charged with kidnapping and sexual assault of minors by the parents.

Thus, the accused were held under Section 363 of the Indian Penal Code (punishment for kidnapping) within the territorial jurisdiction of the Sessions Court, Palakkad. According to the prosecution, the rest of the offences were committed beyond the jurisdiction of the Sessions Court.

The Sessions Court in the impugned order held that since the minor girls left their guardians of their own volition, the offence under Section 363 was not attracted. 

Upon examination of Section 361 (kidnapping), Justice Babu concluded that the object of Section 361 was to protect minor children from being abducted or seduced for improper purposes and to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. It was held that the words `taking’ or ‘enticing’ were crucial in attracting the offence.  

The Single Judge analysed the law laid down in State of Haryana v. Raja Ram (AIR 1973 SC 819 and Shajahan v. State of Kerala (2010 (4) KHC 294) to lay down the essence of kidnapping as an offence under Section 361:

(1) The consent of the minor who is taken or enticed is wholly immaterial.

(2) It is only the guardian’s consent which takes the case out of the purview of the penal provision. 

(3) It is not necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person, which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian, will be sufficient to attract the section.

4) With the consent of the minor, without any element of fraud, force or deceit, the minor can be moved out of the custody of the guardian, and that would attract the expression ‘takes’ or ‘entices’ under Section 361 of IPC.

The Court also recalled that the Supreme Court had held in Parkash v. State of Haryana (2004) that Section 361 of IPC is designed to protect the sacred right of the guardians with respect to their minor wards. 

Justice Babu noted that in all five cases, the prosecution had collected materials which prima facie established attempts to induce the minor girls to go out of the custody of the lawful guardians. In such circumstances, the prosecution allegations would attract the offence under Section 363 read with Section 361, the Court observed.

Since it was established by the prosecution that the girls were kidnapped within the local jurisdiction of the Sessions Court, Palakkad, it was further held that the Sessions Judge had the jurisdiction to try the cases.

As such, the impugned orders returning the final reports were set aside. The Sessions Court was directed to proceed with the final reports in accordance with law. The petitions were accordingly allowed.

Case Title: State of Kerala v. Arumugham and connected matters

Citation: 2022 LiveLaw (Ker) 317

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