Section 361 of Indian Penal Code

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 include 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 lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

STATE AMENDMENT
(Manipur) - In section 361 for the words 'eighteen' substitute the word 'fifteen'. [Vide Manipur Act 30 of 1950, sec. 3 (w.e.f. 16-4-1950), read with Act 81 of 1971, sec. 3 (w.e.f. 25-1-1972)].

COMMENTS

Inducement not immediate cause - The accused was charged for kidnapping a minor girl, below 15 years of age from the lawful guardianship of her father. It was established that the accused had an earlier stage solicited or induced minor girl to leave her father's protection by conveying or indicating an encouraging suggestion, that he would give her shelter. Holding the accused liable for kidnapping under section 363, the Supreme Court said that the mere circumstances that his act was not the immediate cause of her leaving her parental home or guardian's custody would constitute no valid defence and would not absolve him from the offence of kidnapping. The question truly falls for determination on the facts and circumstances of each case; Thakorilal D Vadgama v. State of Gujarat, AIR 1973 SC 2314: (1973) 2 SCC 413.

Lawful guardian Where facts indicate that a girl left her father's protection, knowing and having capacity to know the full import of what she was doing and voluntarily joined the accused, the offence of kidnapping cannot be said to have been made out; S. Varadrajan v. State of Madras, AIR 1965 SC 942. Use of word 'keeping': Meaning of The use of the word "keeping" in the context connotes the idea of charge, protection, maintenance and control; further the guardian's charge and control appears to be compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial: it is only the guardian's consent which takes the case out of its purview. Nor is it 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 would be sufficient to attract the section; Prakash v. State of Haryana, AIR 2004 SC 227.

361 IPC Case Laws (Supreme Court and High Courts)

State v. Harbans SinghKishan Singh AIR 1954 Bom. 339

Chhajju Ram v. State of Punjab AIR 1968 Punj. 439

Manktelow (1853) 6 Cox 143

Jai Narain v. State of Haryana (1969) 71 Punj. L.R. 688

Chathu v. P. Govindan Kutty AIR 1958 Ker 121

R. V. Jarvis 20 Cox 249

Arthan 1966 Cr LJ 210

Samgir Mangalpuri Karibharthi v. State of Gujarat 1966 Guj LR 378

Varadarajan v. State of Madras AIR 1965 SC 942

Sayyad Abdul Sathar v. Emperor AIR 1928 Mad 585

T.D. Vadgama v. State of Gujarat AIR 1973 SC 2313

T.D. Vagama v. State of Gujarat AIR 1973 SC 2313

Kuldeep Kumar Mahato v. State of Bihar AIR 1998 SC 2694

Jeevan v. Rez AIR 1949 All 587

Jeethu Natho v. Emperor 6 Bom LR 785

Nemai Chattoraj (1900) 27 Cal 1041

Israr Husain (1941) 17 Luck 128

Ewaz Ali (1915) 37 All 624

Gunder Singh (1865) 4 WR (Cr) 6

Nathusingh AIR 1942 Nag 34

Jagannathan Raoi v. Kamaraju (1900) 24 Mad 284

Nathusingh AIR 1942 Nag 34

Gooroodoss Rajbunsee (1965) 4 WR (Cr)7