S. Varadarajan v State of Madras (1965) — "taking" a minor out of guardianship needs the accused's active part

Kidnapping from lawful guardianship — IPC s. 361, now BNS s. 137(1)(b) — is committed by whoever "takes or entices" a child out of the keeping of the lawful guardian without the guardian's consent. Varadarajan is the authority on the first verb. It marks the difference between a minor who accompanies a man because she has decided to, and a minor whom the man has taken; it is the case every examiner expects against a problem of a runaway girl.

S. Natarajan, an Assistant Secretary in the Madras Government, lived with his wife and two daughters. The younger, Savitri, was born on 13 November 1942 and was therefore a minor at the relevant time. She had formed an attachment to the appellant, S. Varadarajan. After her father, learning of it, sent her to a relative's house, Savitri telephoned the appellant "asking him to meet her on a certain road in that area and then went to that road herself". She got into his car; they went to the Registrar's office, where an agreement of marriage was registered, and then travelled together until they were traced. The appellant was convicted under IPC s. 363 (punishment for kidnapping) and sentenced; the High Court affirmed. He appealed to the Supreme Court.

Whether, on these facts, the appellant had "taken" Savitri out of the keeping of her lawful guardian within IPC s. 361, when she herself had proposed the meeting, gone to the road, and joined him of her own decision.

The "taking" of Savitri out of the keeping of her father "has not been established". Taking, the Court held, requires something done by the accused — "inducement held out by the accused person or an active participation by him in the formation of the intention, either immediately prior to the minor leaving her father's protection or at some earlier stage". Where a minor girl, knowing and having the capacity to know the full import of what she was doing, left her father's protection and "voluntarily joined the accused, it could not be said that the accused had taken her away from the keeping of her lawful guardian". Distinguishing earlier cases in which the accused had persuaded the girl, the Court said there the "element of persuasion by the accused person which brought about the willingness of the girl … makes all the difference". Holding that "no offence under IPC s. 363 has been established", the Court allowed the appeal and set aside the conviction and sentence.

1. "Takes" in the kidnapping section denotes an act of the accused — inducement, persuasion or active participation in forming the minor's intention to leave — not merely allowing a willing minor to accompany him.
2. A minor's own decision to leave, if formed with the capacity to understand it and without the accused's part in forming it, breaks the chain; mere passive acceptance of her company is not taking.
3. But where the accused's persuasion produced the willingness, the offence is made out — the line is between accompanying and being taken.

• IPC s. 361 is s. 137(1)(b): whoever takes or entices any child, or any person of unsound mind, out of the keeping of the lawful guardian without the consent of that guardian, kidnaps from lawful guardianship; s. 137(1) keeps kidnapping's two kinds — from India and from lawful guardianship. IPC s. 363's punishment is s. 137(2): up to seven years and fine.
• "Child" is defined once, in s. 2(3), as a person under eighteen years — the IPC's sixteen-for-boys, eighteen-for-girls distinction is gone.
• Varadarajan's reading of "takes" applies to the same words in s. 137(1)(b); Vadgama (next reading) is the authority on the second verb, "entices".
• Where the object is marriage against her will or illicit intercourse, the aggravated offence is s. 87 (up to ten years) — the successor of IPC s. 366; abduction by force or deceitful means is s. 138.