1. In this case the accused have been acquitted of the offence of taking a girl under the age of 14 years out of the keeping of her lawful guardian without his consent with intent that she should be compelled, or knowing it to be likely that she would be compelled, to marry against her will (Sections 361, 363, 366, Indian Penal Code).
2. Government appeals against the acquittal.
3. I think the facts have been correctly found by the Sessions Judge, and may be briefly stated as follows:
The girl, Sarasama, aged 8 years, is the daughter of P. Acharlu, a Tahsildar. Her sister, Ramamma, is married to a nephew of Kamaraja, Sarasamma had been on a visit with her sister, Ramamma, in the house of Kamaraju for about a month, with her father's knowledge and consent. The accused are four brothers, and they are the nephews of P. Acharlu. About midnight on the 10th June they came to the house of Kamaraju, which is close to their own, and took the girl, Sarasamma, to their own house, where she was at once married to the third accused. The consent of P. Acharlu was not asked for, nor obtained, and the accused and Kamaraju knew that it would be refused if asked for. Kamaraju after the marriage pretended that the girl was taken away without his consent, but the finding is that he was present at the marriage and really consented to it, hoping to persuade P. Acharlu to accept accomplished facts after the marriage was over. The girl was kept for some 36 hours in the house of the accused, and was then given up to the police whose aid had been sought on behalf of P. Acharlu.
4. The Sessions Judge acquitted the accused, on the ground that Kamaraju was the lawful guardian of the girl at the time, and the prosecution had failed to show that the taking of the girl was without his consent. It was suggested to the Sessions Judge that Kamaraju, if a party to the taking, should be charged as an abettor, but this the Sessions Judge refused to do.
5. The question raised in this appeal is one of great importance, and of considerable difficulty owing to the idefiniteness of Section 361 of the Indian Penal Code, The section requires that a taking or enticing out of the keeping of the lawful guardian without the consent of the guardian about be established, and the explanation to the section states that the words 'lawful guardian 'include' any person lawfully entrusted with the care or custody of such minor.' It cannot, I think, be doubted that Kamaraju had been entrusted with the care and custody of the minor for a temporary, but indefinite, period, and was therefore a lawful guardian for the time being, within the meaning of the section, so that a taking out of his possession, without his consent, would have been an offence. But the evidence is that he was a consenting party, so that the taking from his house was no offence so far as his guardianship was concerned. It is, however, urged for the prosecution that the guardianship of Kamaraju did not extend to the giving of the girl in marriage, and that, for that purpose, she was still under the guardianship of her father, and reliance is placed on the language of Sir Hyde East in reference to the case of Hicks v. Gore 3 Mod. 84. In that cage the mother, who was the guardian of the girl, placed her under the care of Lady Gore, who caused the girl, without her mother's consent, to marry Lady Gore's own son. Lord Herbert having regard to the terms of the statute (4 and 5 Philip and Mary, ch. 8, Section 2) held that no offence was committed. In reference to this Sir Hyde East says: It deserves good consideration before it is decided that an offender, acting in collusion with one who has the temporary custody of another's child, for a special purpose, and knowing that the parent or proper guardian did not consent, is yet not within the statute. For, then, every school-mistress might dispose in the same manner of the children committed to her care, though such delegation of the custody of a child for a particular purpose be no delegation of the power of disposing of her in marriage, but the governance of the child in that respect may still be said to rest with the parent' (1 East Pleas of the Crown page 457,)
6. In reference to this opinion, Mr. Mayne says: 'I think there can be no doubt that if a school-mistress were to connive at the elopement of one of her pupils with a man, she would be convicted under Section 361. She could have no authority to consent to such an act, and he could not have supposed that she had' (Mayne's 'Criminal Law of India' page 643), and Mr. Rosece suggests that the correct view 'is to hold that, by the fraud of the temporary guardian, the latter loses all right to the possession of the child, who reverts into the possession of her natural guardian,' and he states that in accordance with the above view Amphlett, B, in a case tried at Leeds Assizes (after consulting Coleridge, C.J.), ruled that by the fraud of the temporary guardian the right to possession of the child had reverted (Roscee's 'Criminal Evidence,' 11th edition, page 254).
7. In In the matter of the petition of Prankrishna Sarma I.L.R. 8 Calc. 969 the mother of a little girl removed her from her father's house at night, without his consent, and got her married to a certain man. The conviction under Section 363, Indian Penal Code, was upheld, the High Court remarking: 'Under any ordinary circumstances, the custody of the mother is the custody of the father, and any removal of the children from place to place by the mother ought to be taken to be consistent with the rights of the father as guardian, and not as a taking out of his keeping. But the present case is very peculiar. The mother removed the girl from the father's house for the express purpose of marrying her without his consent, and thereby depriving him for ever of her guardianship and custody. This did, we think, amount to a taking out of the keeping of the lawful guardian.'
8. In the present case, though Kamaraju was a guardian within the meaning of Section 361, he was not the only guardian. The explanation to the section says that the words 'the lawful guardian' include any person lawfully entrusted, etc. Such a temporary guardianship does not exclude the higher legal guard ship of the father. That remains in full force. Here Kamaraju was a lawful guardian, and She girl's father also was her legal and lawful guardian. It cannot, of course, be said that the accused removed the girl from the immediate or physical keeping or possession of her father, but such possession on the part of the father is not necessary. In the case of Reg. v. Mycock 12 Cox. Cr. 28 the girl, aged sixteen, met the accused by appointment at some distance from her father's house and went away with him voluntarily. Willes, J, in summing up, said that 'the Statute (24 and 25 Vict., cap. 100, Section 55), upon which the prosecution was based, was for the protection of the rights of parents and the prisoner had no more right to deprive the father of the girl of his property, as it were, in her, and his possession of her, than he would have a right to go into his shop and carry away one of his telescopes or optical instruments. The girl was, also just as much in the possession of her father when she was walking in the street unless she had given up the intention of returning home, as if she had actually been in her father's house when taken off.' Again in The Queen v. Manktelow 22 L.J. 115 the girl met the accused at a distance from her father's house and went away with him. In the course of the argument Alderson, B, remarked: 'What is to determine the father's possession? Suppose the prisoner meets the girl in the garden and takes her away from that place with him, does be not take her out of her father's possession? Or suppose she is walking a mile from the house, or going on a message for her father, and the man meets her and carries her away, is she not in her father's possession? Suppose she is staying on visit is this any difference?'
9. Jervis, C.J., delivered the judgment of the Court (all five Judges concurring), upheld the conviction, and said: 'According to the opinion of Maule, J., in the Reg v. George Kipps 4 Cox. 167, it is not necessary that there should be an actual possession by the father, So long as she continues a member of her father's family and is subject to his contra!, she is in his possession. The facts of this case show that there was a continuing possession in the father.' The case of Reg. v. Henkers 16 Cox. 257 is not opposed to this view, for there the girl, aged under 18 years, had been living in London employed as a barmaid, while her father was living in Wimbledon. There is a clear and wide distinction between a girl of nearly eighteen who has gone into employment away from her father and is earning her livelihood apart from him, and a child who is still habitually living in her father's house and is dependent on him for support and who goes on a merely temporary visit to the house where her sister is staying. The English Statutes are intended to protect the right of parents and to safeguard the interests of minors, and these are also the objects of the provisions of the Indian Penal Code in Sections 361 and 363. The explanation to Section 361 is not intended to limit the protection which the section gives to parents and minors. It is intended to extend that protection by including in the term 'lawful guardian' any parson lawfully entrusted with the care or custody of the minor. The fact that a father allows his child to be in the custody of a servant or friend, for a limited purpose and for a limited time, cannot, in my judgment, determine the father's rights as guardian or his legal possession for the purposes of the Criminal Law. This was clearly the view of Alderson, B, and of the Court in Queen v. Manktelow 22 L.J. 115 already referred to. To hold otherwise would, I think, deprive parents and minors of a protection which they need, and which the law desired to give them, The result of the cases seems to be that the Court must consider all the facts, and see whether they are consistent or not with the continuance of the father's legal possession of the minor. If they are not inconsistent, the minor must be held be in the father's possession or keeping even though the actual physical possession should be temporarily with & friend or other parson. In the present case the accused knew that the father of Sarasamma did not, and would not, consent to her removal from the house of Kamaraju for the purpose of being married to the third accused. When Kamaraju connived at the taking, he knew that it was contrary to the wishes of the girl's father, and that he had no authority to consent to the taking, and his connivance thereat was a fraud upon the rights of the father as guardian, A fraudulent consent of this kind, known to the accused to he fraudulent, would not, in my judgment, be of any avail to the accused. So long as the girl was in the house of Kamaraju where the father allowed her to be temporarily, she was still in the father's legal keeping, and he wag able to exercise control over her through Kamaraju. But when the accused carried her off to their own house, the father had no longer any control over her. By this act they took her from his keeping within the meaning of Section 361, and Kamaraju, in conniving at their act, was, in my judgment, guilty as an abettor.
10. It remains to consider what the result of these conclusions is with reference to the appeal against the acquittal of the accused. The charge against them under Section 366, Indian Penal Code, is framed in general terms, and does not state from whose lawful guardianship the kidnapping took place, and the acquittal is in equally general terms. The records in the case, however, show that the trial was conducted on the footing that the kidnapping was from the guardianship of Kamaraju, and of that offence the accused were rightly acquitted. Whether the accused were guilty of kidnapping the girl from the lawful guardianship of her father was not really tried, though on the evidence that would seem to be the offence of which they were guilty.
11. The charge, however, and the acquittal being in general terms, the acquittal might, I think, be pleaded under Section 403, Criminal Procedure Code, in bar of a new trial on a charge of kidnapping from the father, unless this Court in terms sets aside the acquittal so far as it relates to this offence.
12. I would therefore allow the appeal and set aside the acquittal so far as it relates to the offence of kidnapping from the lawful guardianship of P. Acharlu, and I would dismiss the appeal so far as the acquittal relates to the offence of kidnapping from the lawful guardianship of Kamaraju.
13. I would also direct that the accused be re-tried on the charge of kidnapping the girl from the lawful guardianship of P. Acharlu.
14. It is of course open to the prosecution to take steps against Kamaraju as an abettor.
15. I agree.