1. The petitioner, R.W. Valliant, has been convicted by the Third Presidency Magistrate, Calcutta, of an offence punishable under Section 363, I.P.C., and sentenced to be detained till the rising of the Court and to pay a fine of Rs. 200 or undergo three months rigorous imprisonment in default of payment. He has obtained a Rule calling on the Chief Presidency Magistrate to show cause why the conviction and sentence passed on him should not be set aside on the two following grounds:
For that upon the facts found and proved in the case, no offence under Section 363 has been male out against the accused--and the learned Magistrate has erred in law in not holding so.
For that the reasons given by the learned Magistrate for convicting the accused are unsound and illegal.
2. The petitioner has been convicted of having kidnapped Mildred Eleazar, aged, about 15 years and 5 months, from the lawful guardianship of her mother. It appears that about two months before the date of occurrence the 24th May last, the petitioner and the girl met and struck up a friendship. This friendship ripened into affection. The girl's mother and brother disapproved of this, There was an episode on the 20th May which led to the girl being chastised by her mother, On the afternoon of the 24th May there was a quarrel between the girl and her brother. They kicked each other and the girl left her home and went to the house of a friend, Mrs. Victor. From there she wrote a letter to her mother in which she said she was not coming back. At Mr. Victor's she was met by the petitioner and the two went to the house of Miss Christian, a sister of Mrs. Victor. The girl wanted to stay the night there, but Miss Christian's brother did not consent to this. The petitioner, who had left the girl in order to fulfil an engagement as a musician at the Saturday Club, returned to the Victor's at about 8 p.m. and took her to his mother's house in Kidderpore where she remained for four days. In the meantime the police had been informed of the disappearance of the girl. The petitioner, when questioned about the girl, denied knowledge of her whereabouts, but after he was arrested he wrote to his father and the girl was produced and made over to her mother.
3. In order to support a conviction for kidnapping from lawful guardianship the following are the points requiring proof:
(1) That the person kidnapped was then a minor under 16 years of age, if a female.
(2) That such person was in the keeping of a lawful guardian.
(3) That the accused took or enticed such person out of such keeping.
(4) That he did so without the consent of the lawful guardian.
4. In the present case it has been established that the girl, Mildred Eleazar, was under 16 years of age, and that she was in the keeping of her mother who was her lawful guardian prior to heir leaving her home on the 24th May. The question we have to decide is whether it has been proved in this case that the petitioner took or enticed the girl out of the keeping of her mother. Several cases decided by English and Indian Courts were cited before us, including those to which reference has been made in the judgment of the lower Court. In these cases the following important principles have been laid down. The mere fact that the minor leaves the protection of her guardian does not put her out of the guardian's keeping. But if the minor abandons her guardian with no intention of returning she cannot be held to continue in the guardian's beeping Which principle should be applied to a particular case depends on the facts of that case. We are in some difficulty in the present case as the learned Magistrate has not stated clearly the facts found by him on which he bases his conviction of the petitioner. The guilt or innocence of the petitioner depends on whether, when the girl left her home she did so of her own accord and had definitely decided not to return, or whether her conduct was a mere petulant outburst on consequence of a quarrel with her brother. The girl's evidence gives us no assistance. She has told two totally different stories to the police and to the Magistrate, and her attempt to explain away her former statements is too absurd to need discussion. Her mother is not a witness on whom we can place implicit reliance. A most important piece of evidence on the question of the state of the girl's mind when she left home would be the contents of the letter which she wrote to her mother from Mr. Victor's house. This letter has been withheld by the prosecution, and all we know of its contents is that she wrote that she was not coming back. Further, the Victors, who could have given important evidence oil this point, have not been produced. The petitioner acted foolishly in denying know ledge of the girl's whereabouts when questioned by the police. But the explanation he has given in his written statement, that he thought she would be ill-treated if sent back to her mother, does not appear to us unreasonable. On a full consideration of the oral and documentary evidence in the case we hold that the prosecution has failed to prove that the petitioner has committed an offence punishable under Section 363, I.P.C.
5. We accordingly make this Rule absolute. We set aside the conviction and sentence of the petitioner and acquit him of the charge on which he was tried. The fine, if paid, will be refunded.