Francis W. Maclean, K.C.I.E., C.J.,
1. The question submitted to us by the learned Judges who referred this case is 'whether the petitioner can be properly convicted under Section 363 of the Penal Code of kidnapping from lawful guardianship, or whether, that offence being completed when she left the house and guardianship of her husband, he cannot under any circumstances be convicted of that offence.'
2. The question perhaps is not very happily worded, for if the offence of kidnapping were completed when the girl left the house, which means I suppose when,--to follow the language of Section 361,--she was taken or enticed out of the keeping of her lawful guardian without his consent, and if, as is conceded, the accused had nothing to do with the actual taking or enticing out of the keeping of the lawful guardian, and did not appear upon the scene until some three weeks after the actual taking or enticing away, and that what he then did,--according to the finding in the reference,.--was to join in taking her to Calcutta for the purpose of making her lead the life of a prostitute, I fail to see how the accused could be properly convicted under Section 363. But though the question has been so framed, the case has been argued before us upon the footing that the taking or enticing was not completed when the accused joined in taking the girl to Calcutta, and that the taking and enticing out of the keeping of the guardian was a continuous act, and that the accused took part in that continuous act, and therefore is liable to conviction under the section I have mentioned. I will deal with the case on this footing.
3. Now, what is the definition of kidnapping, for we are dealing only with the question of whether the accused can be properly convicted of that offence? Section 361 thus defines it, 'Whoever takes or entices any minor under fourteen years of age if a male, or under sixteen 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.'
4. The question, in each case, must be whether the accused did or did not actually take or entice the boy or girl, as the case may be, out of the keeping of the lawful guardian without his consent. The question is one of fact, and must in each case be decided upon the particular evidence of each particular case. The section says 'taking' or 'enticing;' it does not say a word about 'detaining' out of the keeping of the guardian, and when the Legislature means 'detaining' it says so, as in Section 498. Upon the facts found in the reference, I do not see how the accused can be said to have taken or enticed the girl out of the keeping of her guardian: the act of taking was completed when the girl was actually taken out of the keeping of her guardian, and in this apparently, the accused had no part. He had nothing to do with the matter until three weeks later. The act of taking is not, in the proper sense of the term, a continuous act: when once the boy or girl has been actually taken out of the keeping, the act is a completed one.If continuous, it would be difficult to say when the continuous taking ceased: it could only be when the boy or girl was actually restored to the keeping of the guardian. But this would constitute not the act of 'taking' but an act of 'detaining.'
5. If for instance, I have a watch which I keep in my pocket, and some light-fingered, but not too honest, personage takes that watch out of my pocket, the moment he has actually abstract that watch he has taken it out of my keeping, but it would be a strange thing to say that if one month afterwards some light fingered friend of his joins him in taking this watch to a pawnbroker, the latter personage Can properly be said to nave taken the watch out of my keeping. He bad nothing to de with the taking. 'No doubt in the case have put of a watch, the act, if dishonestly done, amounts to stealing: in the case of a minor taken from the keeping of a lawful, guardian it is called kidnapping.
6. With regard to the suggestion that,'when the accused joined in the journey to Calcutta, the girl was still in the constructive keeping of her husband, there is nothing in the English cases cited which go that length. I do not see how she can be properly said to be within his constructive keeping, when she was taken from his actual keeping some three weeks previously.
7. I propose to deal very shortly with the cases cited. The case of Beg. v. Samia Kaundan (1876) I.L.R., 1 Mad., 173, was a case of kidnapping out of British India, and as, when the accused intervened, the boy had not been actually taken out of British India, the process of 'taking' was regarded as still going on, or continuing, and as the accused took part in it, it was held that his case was within the section. That case does not clash with the view I have expressed above, whilst the cases in the Allahabad High Court referred to in the reference tend to support it.
8. I do not regard the case of Rakhal Nikari v. Queen-Empress (1897) 2 C.W.N., 81, as an authority one way or the other, for the point now under discussion was not then raised: though there is, of course, the dictum of Mr. Justice Ghose which accords with my own view. In my opinion then, the question submitted to us ought to be answered in the negative.
9. I am disposed to agree with Mr. Justice Rampini in doubting whether any ease for a Full Bench reference properly arose in this case: but, be that as it may, as the matter has been referred, I think we were bound to express our opinion upon it.
10. With this expression of opinion I would remit the case to the Bench taking the criminal cases, which I think we have every power to do under Rule 5 of Chapter 5 of the Appellate Rules and Orders.
11. This case was referred to a Pull Bench by the Bench dealing with the criminal business of the High Court, consisting of myself and Stanley, J. The facts showing the point referred are clearly stated to be whether the appellant who did not join in the kidnapping but joined in promoting the purpose of the kidnapping from lawful guardianship can be convicted of that offence or whether that offence being completed when the woman left the house and guardianship of her husband, the appellant cannot, under any circumstances, be convicted of that offence.
12. The reason for the reference to the Full Bench is stated to be that the judgment of this Court in Rakhal Nikari v. Queen-Empress (1897) 2 C.W.N., 81, is in this respect opposed to that of the Madras High Court in Beg. v. Samia Kaundan (1876) I.L.R., 1 Mad., 173, in which we were inclined to agree.
13. It was with some surprise that I heard the pleader who pressed us to follow Rakhal Nikari v. Queen-Empress (1897) 2 C.W.N., 81, contend before this Full Bench that case was not in point, and that it did not decide the matter referred, for on that ground obviously this reference should not have been made. As some of my learned colleagues have also expressed that opinion, it becomes my duty to state why Stanley, J., and I referred this case.
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.
15. I am satisfied with the opinion expressed by my Lord the Chief Justice that the offence of kidnapping from lawful guardianship is complete when the woman is actually taken from lawful guardianship, and that it is not an offence continuing so long as she is kept out of such guardianship.
16. The result in this case will be that the appellant must be acquitted of that offence though he afterwards actively promoted the purpose of the kidnapping, and that unless he can properly be convicted under Section 368, Penal Code, he will be released. I venture to think that the law is defective in such a result.
17. The case will now be returned to the Criminal Bench for final determination whether on the evidence the appellant can be properly convicted of any other offence.
18. The petitioner, Nemai Chattoraj, has been convicted under Section 363 of the Indian Penal Code, i.e., for kidnapping a girl under 16 years of age from the lawful guardianship of her husband.
19. It is stated by the learned Judges, who have referred this case to the Full Bench, in their referring order, that there is no evidence that the petitioner 'was a party to the taking away of the girl under false pretences that she was being taken to her mother, but there is evidence that while she was being taken to Calcutta for the purpose of making her lead the life of a prostitute Nemai joined in promoting this purpose and was one of those who took her to Calcutta: 'or in other words, as I understand it, that there is no evidence that he took any part, either directly or indirectly, in the taking or enticing away the girl, but that he afterwards helped the person or persons who had enticed her away, in removing her to Calcutta for the purpose of prostitution. Section 361 of the Indian Penal Code, which defines the offence of kidnapping, says: 'Whoever takes or entices any minor under 14 years of age if a male or under 16 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.
20. It will be observed that the essence of the offence consists in taking or enticing away, and not in keeping the minor after such taking or enticement; so that the offence would be committed when the minor is actually taken or enticed away from the keeping of the guardian. I do not mean here to say that the offence is necessarily committed when the minor steps out of the threshold of the guardian; for her absence may be temporary, and may be capable of explanation. But so soon as she is fairly out of the control of her guardian, the offence, I take it, is committed, and I should thank it is then complete.
21. The question, however, that has been put before the Full Bench is, whether in this case the petitioner 'can properly be convicted under, Section 363 of the Penal Code, of kidnapping from lawful.guardianship, or whether, that offence being completed when she left the house and guardianship of her husband, he cannot under any circumstances be convicted of that offence.' This question, as I understand it, presupposes that the girl did leave the guardianship of her husband before the petitioner had anything to do with her; and if that be so, the only matter for consideration is whether the act of the petitioner in joining the principal offender or offenders subsequent to the kidnapping of the girl in promoting the purpose of taking her to Calcutta, makes him guilty of the offence of kidnapping, as defined in Section 361.
22. The learned Judges in referring this case to the Pull Bench have relied upon the decision of the Madras High Court in the case of Beg. v. Samia Kaundan (1876) I.L.R., 1 Mad.. 173, where that Court in the course of their judgment, observed: 'So long as the process of taking the minor out of the keeping of the lawful guardian continued, the offence of kidnapping might be abetted.'
23. This proposition taken by itself would seem to involve the question, when was the taking away out of the keeping of the lawful guardian complete. According to the view of facts in this case, as accepted by the learned Judges who have referred this case, the taking away out of the guardianship of the husband was complete before the petitioner joined the principal offenders in taking the girl to Calcutta; and in this view of the matter it follows that he could not have abetted the offence of kidnapping the girl.
24. Referring, however, to the judgment of the Magistrate which gives the facts upon which the question before the Full Bench arises--facts which have not been contested by the learned Vakil for the Crown--what occurred was this: one Rajani who appears to be son of the priest of the husband's family, promised the girl that he would take her to her mother; that one evening she was taken away not however to her mother's house, but to the house of Rajani's father Rambundhu, and here she was kept for two days and then one Mohendro came and took her away to his own house and kept her there for 20 days, and subsequently clandestinely removed her to the house of the petitioner, and from that house the petitioner and Mohendro took her through different places to Calcutta. And we have been informed by the learned Vakil for the petitioner that it appears on the record that Rambundhu's house is a mile distant from the house of the girl's husband, and Nemai's house is about 8 miles from Mohendro's.
25. Upon these facts, when was the taking away complete?. It may be taken to have been complete either when she was taken to Rambundhu's house or to Mohendro's house. At any rate the process of taking the minor out of the keeping' of the guardian was complete when she was taken from Rambundhu's to Mohendro's house, and there kept for 20 days together, without being allowed to go back to her husband's or to her mother's. If the taking away was then complete, I fail to see how, subsequent thereto, the petitioner could have committed the offence of kidnapping, when the girl was taken over to his house. What the petitioner did when she was taken by Mohendro to his house had evidently no Connection with, or bearing upon the matter of taking or enticing away from the guardianship of her husband. His acts and conduct might possibly bring him within the provisions of Section 368 of the Indian Penal Code but he cannot be brought within Section 363, unless there is some evidence (and it is conceded there is noneshowing that it was at his instigation that the girl was kidnapped.
26. The case of Beg. v. Samia Kaundan (1876) I.L.R., Mad., 173, was one where the offence was an attempt at kidnapping a boy out of British India as defined in Section 360. The accused knowing that the boy had left home without the consent of his parents, at the instigation of another person undertook to carry him to Kandy in Ceylon, and had proceeded on the way as far as Trichinopoly where he was arrested. The learned Judges of the Madras High Court held that the offence committed by the accused was one which fell under Section 363, read with Section 116, of the Indian Penal Code. It will be observed that Section 363 refers to two distinct offences: (1) kidnapping a person from British India, without that person's consent or of some person legally authorized to consent on his behalf as defined in Section 360, and (2) kidnapping out of lawful guardianship as defined in Section 361; and that being so, the conclusion arrived at by the Madras High Court would seem to me to be correct. The learned Judges, however, in the course of their judgment made certain observations to which I have already referred. If these observations are read by the light of the facts of the case and the conclusion arrived at by the Court, there is no ground to take exception thereto; for until the minor was taken out of British India, the attempt to commit the offence was being made. It was thus a continuous offence, and the offender was therefore liable to be punished for the first of the two offences mentioned in Section 363, read with Section 116, Indian Penal Code. But suppose the minor was actually taken out of British India, could it be said that any person, who joined the kidnapper in Ceylon and removed the boy from place to place or kept him in his possession, would be guilty of the offence of kidnapping out of British India, as defined in Section 360? I apprehend not for the offence was complete when the minor was put out of British India. The whole question in a case like this is, when was the offence complete. If however the observation of the learned Judges in the Madras case be taken as applicable not only to a case of kidnapping out of British India, as defined in Section 360, but also to the case of kidnapping, as defined in Section 361,1 am bound to say that I am unable to agree with them; and I observe that the case has been dissented from in two cases in Allahabad, Queen-Empress v. Barn Dei (1896) I.L.R., 18 All, 350, and Queen-Empress v. Ram Sundar (1896) I.L.R., 19 All, 109.
27. It has, however, been argued by the learned Vakil for the Crown, that the girl must be taken to have been in the constructive possession of her guardian, even after she was removed from Mohendro's house to the petitioner's house, and that such constructive possession continued until the purpose which the principal offender had in view was completed, namely, until she was taken to Calcutta, and therefore the offence was a continuing one. I need hardly observe that the facts accepted by the learned Judges who referred this case to the Full Bench are contradictory to this argument; and I cannot understand how the girl could possibly be under the constructive keeping of her guardian, when she was put out of his control by the acts and conduct of the principal offender, Mohendro, or Rajani, whoever he may be. Another argument that has been advanced on behalf of the Crown is that the intention of the girl to return, or not to return, to her husband is an element in the consideration of the question whether she was not, notwithstanding her removal from her husband's house, in his constructive possession. I cannot find any warrant for this construction; and I need hardly say that Section 361 of the Indian Penal Code does not contemplate such considerations.
28. If the offence, notwithstanding the removal of the girl from the keeping of the guardian, be regarded as continuous, how long is this to continue? 'It might, according to the contention on the other side continue for years together, and any person who might have anything to do with the minor during this long interval of time in keeping her out of the way, or in his possession, would be punishable under Section 363; and this could not obviously be maintained.
29. Reference was also made, by way of analogy, to the offence of breach of trust; and it has been said that in the same way that such an offence is continuous, the offence of kidnapping should also be taken to be continuous. But it will be observed, referring to the definition of criminal breach of trust (Section 405), the offence is committed by the misappropriation, conversion, or disposal of the property by the person who has the custody thereof; and assuming that the retention of the property after such conversion would make the offence continuous (which may be doubted) the argument could not apply to any third person, to whom the offender might make over the property after conversion unless he abetted the commission of the offence itself.
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.
31. For these reasons I agree with the learned Chief Justice in holding that the petitioner is not guilty of the offence of kidnapping under Section 363, Indian Penal Code.
32. This is a reference under Rule 5, Chapter V of the rules of this Court, in which the question propounded is whether an accused person who, after a minor had been removed from the house of her lawful guardian, joined in taking her to Calcutta for the purpose of making her there lead the life of a prostitute, 'can be convicted under Section 363, Penal Code, of kidnapping from lawful guardianship, or whether, that offence being completed when she left the house and guardianship of her husband, he cannot under any circumstances be convicted of that offence.'
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.
34. I would say in the first place, that I feel doubts as to whether this reference has been regularly made. Rule 1 of Chapter V of the Rules of this Court prescribes that a Division Bench is at liberty to refer a case to a Full Bench whenever it differs upon appoint of law from another Division Bench of this Court. But the remark of Ghose, J., above cited, appears to me to be the opinion of an individual Judge. Trevelyan, J., though he may have held this opinion, did not express it in so many words, and I, too, who was a party to the decision of that case, expressed no such opinion. Moreover, even if Trevelyan, J., did join Ghose, J., in expressing such an opinion, it was an obiter dictum; for She question when the offence of kidnapping is complete was never decided in that case. It could not be decided, for it was never raised or argued, at least before Ghose, J., and myself. It therefore seems to me that there is no decision of any Bench of this Court from which the Judges who referred this case could differ. There are no doubt conflicting decisions of the Madras and Allahabad Courts on the subject, but these do not appear to me to justify a reference.
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.
36. I say nothing with regard to the facts of the present case on as to the sufficiency or otherwise of the evidence for the conviction of the applicant; for that evidence has not been laid before us, and I understand the case 'is to be remitted to the referring Judges for disposal.
37. The question referred to the Full Bench is 'whether Nemai Chattoraj can be properly convicted under Section 363 of the Indian Penal Code of kidnapping one Johura, a minor, from the lawful guardianship of her husband Gopal Singh.'
38. The facts, as found by the Deputy Magistrate of Bankura who originally tried the case and admitted by the learned pleader, who appeared for the Crown, are, that Johura on or about the 20th July 1899 was taken by one Rajani to the house of his father, Rambandhu, a priest; she remained there for two days and then one Mohendro took her away to his house and kept her there for twenty days. At the end of that period, Mohendro, one night, removed her to the house of Nemai Chattoraj. This is the first appearance of Nemai Chattoraj on the scene, twenty-two days after the removal of Johura from her husband's house; there is no evidence whatever before us to connect Nemai Chattoraj with Johura until twenty-two days after she had left or had been taken away from her husband's house. 'Kidnapping from lawful guardianship' is defined in the Indian Penal Code as 'taking or enticing away any minor out of the keeping of the lawful guardian of such minor without the consent of such guardian.' The words used are quite clear and explicit, 'taking or enticing away.' There is no mention of 'detaining.' Can it be said that a man takes or entices away a minor from the lawful guardianship of her husband when it is found on the evidence that his first connection with the minor is twenty-two days after she has left or has been taken away from her husband's house? It seems to me that the answer must be in the negative. My opinion on the question referred to us is that Nemai Chattoraj cannot be convicted under Section 363 of the Indian Penal Code of kidnapping Johura from the lawful guardianship of her husband. I think it unnecessary for me to say more or to discuss the cases that have been cited before us as they have been fully dealt with in the judgments that have been already delivered.