Where a minor child, claimed to have been abducted by the accused person, had left her father's protection knowing and having the capacity to know the full import of what she was doing and joined the accused willingly, the court opined that it could not be said that the accused had taken her away from keeping of her lawful guardian in the sense of s. 361 of the Indian Penal Code (1860 Act XLV). In such a situation, something more had to be done, and such as an inducement kept by the accused person or an active participation by him in forming the plan, either immediately before the minor left the safety of her father or at some earlier point. The court stated that if the facts failed to prove either of these things, the accused should not be guilty of the crime merely because, after she had actually left the house of her guardian or a house where she had been held by her guardian, she joined the accused willingly, and the accused helped her not to return to the house of her guardian by moving her from place to place with him.
The hon’ble Supreme Court said that, “The question whether a minor can abandon the guardianship of his or her own guardian and if so the further question whether Savitri could, in acting as she did, be said to have abandoned her father's guardianship may perhaps not be very easy to answer. Fortunately, however, it is not necessary for us to answer either of them upon the view which we take on the other question raised before us and that is that "taking" of Savitri out of the keeping of her father has not been established. The offence of "kidnapping from lawful guardianship" is defined thus in the first paragraph of s. 361 of the Indian Penal Code - "Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen 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."
The court stated that after pointing out that there was an essential distinction between the words "taking" and "enticing" it was no doubt observed that the mental attitude of the minor was not of relevance in the case of taking and that the word "take" meant to cause to go, to escort or to get into possession. But these observations had to be understood in the context of the facts found in this case. For, it had been found that the minor girl whom the accused was charged with havingkidnapped had been persuaded by the accused when she had gone out of her house for answering the call of nature, to go along with him and was taken by him to another village and kept in his uncle's house until she was restored back to her father by the uncle later. Thus, here there was an element of persuasion by the accused person which brought about the willingness of the girl and this made all the difference. In the opinion of the bench, therefore, neither of these decisions were of assistance to the State.
The court was satisfied, upon the material on record, that no offence under S. 363 had been established against the appellant and that he is, therefore, entitled to acquittal. Accordingly they allowed the appeal and set aside the conviction and sentence passed upon him.