S. Varadarajan vs State Of Madras on 9 September, 1964
24. In view of this scenario, it cannot be held at the
accused at any given point in time took or enticed the victim out of
the control of her legal guardian. It appears that the victim herself
had the intention of joining the company of the accused, and the
latter had no role to play, at any point in time, to solicit or take away
the victim away from her legal guardian. For this reason, he can not
be convicted for the offence punishable under Section 363 IPC. At
this juncture, this court seeks guidance from the law laid down by
the Hon'ble Supreme Court of India in S. Varadarajan vs State Of
Madras 1965 AIR 942, wherein it was held,
"It must, however, be borne in mind that there is a
distinction between "taking" and allowing a minor to accompany a
person. The two expressions are not synonymous though we would
like to guard ourselves from laying down that in no conceivable
circumstance can the two be regarded as meaning the same thing
for the purposes of s. 361 of the Indian Penal Code. We would limit
ourselves to a case like the present where the minor alleged to have
Cr. Case No. 3079/2017 State vs. Yogesh Kumar Page 13 of 16
been taken by the accused person left her father's protection
knowing and having capacity to know the full import of what she
was doing voluntarily joins the accused person. In such a case we
do not think that the accused can be said to have taken her away
from the keeping of her lawful guardian. Something more has to be
shown in a case of this kind and that is some kind of inducement
held out by the accused person or an active participation by him in
the formation of the intention of the minor to leave the house of the
guardian. It would, however, be sufficient if the prosecution
establishes that though immediately prior to the minor leaving the
father's protection no active part was played by the accused, he had
at some earlier stage solicited or persuaded the minor to do so. In
our, opinion if evidence to establish one of those things is lacking it
would not be legitimate to infer that the accused is guilty of taking
the minor out of the keeping of the lawful guardian merely because
after she has actually left her guardian's house or a house where
her guardian had kept her, joined the accused and the accused
helped her in her design not to return to her guardian's house by
taking her along with him from place to place. No doubt, the part
played by the accused could be regarded as facilitating the
fulfillment of the intention of the girl. That part, in our opinion, falls
short of an inducement to the minor to slip out of the keeping of her
lawful guardian and is, therefore, not tantamount to "taking"."