1. In this case, the two petitioners apply to us in revision complaining of the conviction which has been recorded against them by the trial Magistrate and the appellate Court under Section 363, I. P.C., in respect of a boy as to whom it is not clear whether he is just above or just below the age of seven, The boy is a Mahomedan and it seems that the petitioners are persons who took the boy away from the custody of his half sister's husband and herself with whom he had been living for about a year and a half since his father's death. The petitioners in so acting were apparently acting on behalf of the boy's paternal aunt and no doubt the circumstance that this boy has a certain amount of property is the cause of the battle raging as to who shall have the custody. Still prosecution under Section 363, I. P.C., must be properly grounded. The learned Sessions Judge in the course of his judgment says:
I am not prepared to enter into questions of Mahomedan Law to the extent of determining whether either the complainant or the complainant's wife was entitled to be the legal guardian of the child, but I am satisfied that the child was actually, in the de facto custody, and I am of opinion that Section 363, I. P.C., does cot call for a closer degree of guardianship especially in the circumstances of the present case.
2. I do not doubt at all that the explanation to Section 361 was intended to extend the meaning of the words 'lawful guardian' beyond their ordinary scope. It is extended to include any person lawfully entrusted with the care or custody of such minor or other person. I do not doubt either that, where by consent of the relatives a minor has been allowed to be in the custody of a particular relative, the definition given by the section will be satisfied. In such a case, there may be no definite transaction of entrustment, but the consent of the relatives would be quite sufficient to make the guardianship lawful guardianship. In the present case however the petitioners before us were claiming that they had ceased to consent to any guardianship on the part of the complainant and his wife. They claimed that they were asserting the higher right of the paternal aunt and the question arises whether, as against a person who is asserting a better right than a person who has a de facto guardianship, the explanation to the section does not require the Court to examine into this question whether they have a better right or not. It seems to me that the case of Emperor v. Sital Prosad  42 All. 146 which has been cited to us by the learned advocate for the complainant is a direct authority to the [effect that the explanation cannot be used to mean that, as against a person who, in fact, is the civil guardian of the minor, mere de facto guardianship can be set up so as to convict the real civil guardian of an offence under Section 361. Dalai, J. at pp. 149 and 150 says:
It was argued that Ram Tawakkal was the guardian of the girl under the law applicable to Hindus in this province, and that therefore the taking away of the girl by him and his associates from the custody of Mt. Chandarkali did not amount to kidnapping as defined in Section 361, I. P.C. I would accept the inference of law under the Penal Code, if Ram Tawakkal were proved to be the girl's guardian under the Hindu law. Expl. 1, Section 361, I. P.C., which defines lawful guardian, extends the accepted definition of those words under the civil law governing the minor. The definition does not exclude the person who would be the minor's guardian under the civil law applicable to the minor. This precaution of extending the meaning of the words 'lawful guardian' under the criminal law was taken to preclude persons other than the civil law guardian from raising the technical plea that the legal relation of ward and guardian did not exist between the minor and the person from whose actual custody the minor may happen to be taken away.
3. I pause there to observe that action was taken to preclude persons other than the civil law guardian' from raising the technical plea:
The person in temporary charge of the minor cannot however take advantage of this definition given in Expl. 1, Section 361, I. P.C., as against the guardian at civil law. If I had been satisfied that Ram Tawakkal was the guardian of the minor girl, Mt. Rajpatia, at civil law, I would not have inquired further into this ease.
4. It is contended by the petitioners in the present case that, having regard to the fact that it is common ground that the taking away was done by them in association with and on behalf of the: paternal aunt, it is not possible to convict them without coming to a conclusion whether the paternal aunt is the guardian of the minor at civil law. The learned Judge has refused to enquire into that question at all saying that the mere de facto guardianship of his half sister and her husband would be sufficient to conclude the case. It appears to me that] the authority to which we have been referred is a clear authority the other way and that it was incumbent on the learned Judge before disposing of this appeal to make up his mind one way or the other; whether, in the circumstances of this case, the paternal aunt was the guardian at civil law of this Mahomedan boy. The learned Judge not having dealt with that question, I am of opinion that the appeal must be reheard and that the Rule must; be made absolute sending the case back for that purpose. At the rehearing, the question whether the half sister has lost her right by reason of her marriage to some one within prohibited degree or otherwise may be one of the questions upon which will depend whether or net this paternal aunt has the right of the guardian at civil law. Any other question which is necessary for that purpose such as the exact age of the boy must also be dealt with, If the learned Judge is not certain what is the exact age of the boy and if he is not certain who is his civil guardian, then if it seems to him that the paternal aunt may be the civil guardian, the criminal appeal must be -disposed of accordingly. The Rule is made absolute on these terms. The petitioners will continue to remain on the same bail as before pending their retrial.
5. I agree.