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14. The point under consideration in that case was whether the appellant under findings of fact exactly similar to those in the present case could properly be convicted of abetment; and it was held by Trevelyan and Ghose JJ. Rampini, J., dissenting, that he could not. The case started on the assumption the kidnapping "was complete" "when the girl was kidnapped." Those are the words of Ghose J., and it was because that opinion had been expressed without dissent on the part of the other Judges that we held that this view of the law was contrary to that expressed in Beg. v. Samia Kaundan (1876) I; L.R., 1 Mad., 173. We noticed that case had not been before those learned Judges, but still we considered, and I maintain justly considered, that the point now referred had been considered and determined. The learned Judges, Trevelyan and Ghose, JJ., who decided that case held that the prisoner was an accessory after the fact and not an abettor and that therefore he was not liable to punishment. If they had not held that the offence had been completed and that it was not continuing they could not have come to that conclusion. I therefore still venture to think that there were ample grounds for this conclusion on our part. If it is now otherwise held I can only say that we were misled by the terms of the judgment of Ghose, J., by the result of. that case, and by the arguments of the pleader who has now taken the very, unusual course of expressing the contrary view of that judgment.

30. Before I conclude I have one word to say about the case of Rakhal Nikari v. Queen-Empress (1897) 2 C.W.N., 81, referred to in the referring order. The question that was argued at the bar in that case was whether the acts and conduct of the petitioner, subsequent to the enticement of the girl out of the keeping of her lawful guardian, were such as would be sufficient to show that he instigated the said enticement, and thereby committed the offence of abetment of kidnapping under Section 363. That was the question upon which Rampini, J., and I disagreed, and which was eventually settled by the judgment of Trevelyan, J. In that case, the proposition, which I thought to be well understood, that, the offence of kidnapping was complete when the girl was enticed away, was not questioned, and so both Trevelyan, J., and myself in the course of our respective judgments remarked, and I had no doubt, that the offence was complete when the girl was actually kidnapped. And that is the view which we ought now to adopt.

33. The learned Judges who make this reference point out that in the case of Beg. v. Samia Kaundan (1876) I.L.R., 1 Mad., 173, it has been said that "so long as the process of taking the minor out of keeping of his lawful guardian is continued, the offence of kidnapping may be abetted." On the other hand, the Allahabad High Court in Queen-Empress v. Ram Dei (1896) I.L.R., 18 AIL, 350, has disapproved of this ruling, and in Queen-Empress v. Ram Sundar (1896) I.L.R. 19 All., 109, has apparently been of a contrary opinion. Further, in the case of Rakhal Nikari v. Queen-Empress (1897) 2C.W.N. 81, decided by this Court, it has been said by Ghose J., that the offence of kidnapping is complete when the minor is actually kidnapped.

35. But if it be necessary for me to answer the question which forms the subject of this reference, then I would say that I do not think that the offence of kidnapping under Section 363 is necessarily or in all cases complete as soon as the minor is removed from the house of the guardian. It may or may not be complete at this time. When the act of kidnapping is complete it would appear to me to be a question of fact to be determined according to the circumstances of each case. In this case whether the conviction under Section 363, Penal Code, of the applicant for revision can be upheld, will depend upon whether, when he joined in promoting the purpose of the other accused, the minor was or was not completely beyond the control of her lawful guardian, which is a question of fact. If she was so beyond his control the conviction of the applicant is without doubt bad. But I cannot consider that she would necessarily be beyond his control, or that the offence of kidnapping her must be complete, as soon as she was removed from or left his house. In short, the words "taking or enticing a minor out of the keeping of the lawful guardian of such minor" in 3s. 361 should, I think, be interpreted in a somewhat elastic manner, very much in accordance with the English law on the subject as laid down in the cases of Beg. v. Robb (1864) 4F. &F.59 Beg. v. Robins (1844) 1 C. & K., 456, and Beg. v. Mankletow (1853) Dears.. C.C. 159. In the first of these cases, it has been held that it is not necessary for a conviction of kidnapping that the prisoner should be present, when the minor quits its house with the intention of abandoning it. In the second, the defendant was convicted under the statute, though all he had done was at the minor's request to place a ladder under a window by which she descended to him. In the third case, a girl left her house alone by a preconcerted arrangement with the prisoner and went to a place appointed, where she was met by him and they then went off together. The prisoner was nevertheless convicted of kidnapping. The provisions of Section 363, Penal Code, should, in my opinion, be similarly interpreted and a person may, I think, be properly convicted of kidnapping from lawful guardianship, though he may not take part in the actual removal of the minor from the guardian's house, though the minor may come to him of his or her own accord, and though the acts which render him amenable to the provisions of Section 363, Penal Code, are committed subsequently to that event, but before the minor is completely beyond the direct or constructive keeping of the guardian.