The expression "lawful guardian" in Section 361 of the Indian Penal Code includes persons who have become guardians of a minor or lunatic in a lawful manner, and the words "lawfully entrusted" in the Explanation to Section 361 must be liberally construed.

Headnote:
KIDNAPPING - SECTION 361, 366 - LAWFUL GUARDIAN - EXPLANATION - INTERPRETATION - CONSTRUCTION - RATIO DECIDENDI - COURT ANALYSIS AND CONCLUSION - FINAL DECISION: 1. The expression "lawful guardian" in Section 361 of the Indian Penal Code includes not only legal guardians but also persons who have become guardians of a minor or lunatic in a lawful manner. 2. The words "lawfully entrusted" in the Explanation to Section 361 must be liberally construed and do not require a formal declaration of trust or the presence of three persons. 3. A person who voluntarily undertakes the care and custody of a minor in a lawful manner can be considered a lawful guardian within the meaning of Section 361. 4. The kidnapping of a minor from the custody of a lawful guardian without their consent constitutes an offence under Section 366 of the Indian Penal Code. 5. The trial court erred in directing the jury to bring in a verdict of not guilty without considering the evidence and the provisions of Section 361 and its Explanation. 6. The verdict of the jury and the order of acquittal are set aside, and a retrial of the accused on the charge under Section 366 is ordered.
Fact of the Case:

The accused was charged with kidnapping a minor girl, Sharifa, under Section 366 of the Indian Penal Code. The prosecution alleged that the accused had taken Sharifa from the custody of her lawful guardian, Abbas, without his consent. The accused claimed that Abbas was not the lawful guardian of Sharifa and that the girl's mother, Jaibunissa, was her legal guardian. The trial court directed the jury to bring in a verdict of not guilty, holding that the prosecution had failed to prove that Abbas was the lawful guardian of Sharifa.
Finding of the Court:

The High Court held that the trial court erred in directing the jury to bring in a verdict of not guilty. The court interpreted the expression "lawful guardian" in Section 361 liberally to include persons who have become guardians of a minor or lunatic in a lawful manner. The court also held that the words "lawfully entrusted" in the Explanation to Section 361 must be liberally construed and do not require a formal declaration of trust or the presence of three persons. The court found that Abbas could be considered a lawful guardian of Sharifa within the meaning of Section 361, as he had voluntarily undertaken the care and custody of the minor in a lawful manner.
Issues: 1. Whether the expression "lawful guardian" in Section 361 of the Indian Penal Code includes persons who have become guardians of a minor or lunatic in a lawful manner. 2. Whether the words "lawfully entrusted" in the Explanation to Section 361 must be liberally construed. 3. Whether a person who voluntarily undertakes the care and custody of a minor in a lawful manner can be considered a lawful guardian within the meaning of Section 361. 4. Whether the kidnapping of a minor from the custody of a lawful guardian without their consent constitutes an offence under Section 366 of the Indian Penal Code.
Ratio Decidendi: 1. The court interpreted the expression "lawful guardian" in Section 361 liberally to include persons who have become guardians of a minor or lunatic in a lawful manner, as the purpose of the section is to protect minors and persons of unsound mind from being kidnapped. 2. The court held that the words "lawfully entrusted" in the Explanation to Section 361 must be liberally construed, as a strict and narrow construction would expose a large class of minors and lunatics to the danger of kidnapping. 3. The court found that Abbas could be considered a lawful guardian of Sharifa within the meaning of Section 361, as he had voluntarily undertaken the care and custody of the minor in a lawful manner, and there was evidence that Jaibunissa had entrusted Sharifa to his care.
Final Decision: The verdict of the jury and the order of acquittal are set aside, and a retrial of the accused on the charge under Section 366 is ordered.

JUDGMENT - Gajendragadkar, J.

1. This is an appeal against the order passed by the learned Additional Sessions Judge, Greater Bombay, acquitting the respondent of the offence under Section 366, Penal Code. The charge against the respondent was that on or about 26th April 1952, at Bandra he kidnapped Sharifa Mahomed in order that she may be forced or seduced to illicit intercourse and thereby committed an offence under Section 366, Penal Code. Another charge had been framed against the respondent and that was under Section 376. But it appeared clear that this latter offence was alleged to have been committed outside the jurisdiction of the learned Additional Sessions Judge and so the accused was not tiled in respect of this offence.

2. In support of the charge under Section 3S6 the prosecution examined the gin, Abbas, whom the mother of the girl has remarried, and the doctor. They have also led the evidence of other witnesses; but it is unnecessary to refer to that evidence. After the evidence was recorded and the plea of the accused was taken, the learned Judge directed the jury on 8th January 1953, to return a verdict of not guilty in favour of the accused on the charge in question. Pursuant to this direction the jury unanimously brought in a verdict of not guilty, and acting on that verdict the learned Judge acquitted the accused. It is the order of acquittal thus passed by the learned Judge that is challenged before us by Mr. Chandrachud on behalf of the State of Bombay.

3. In giving his direction to the jury to bring in a verdict of not guilty, the learned Judge told them that under Section 361 it was necessary for the prosecution to satisfy the jury that at the material date the girl kidnapped was below 18 years of age, that she was within the lawful guardianship of her parents, that she was taken away or enticed away by the accused and that the accused had done this act without the consent of the lawful guardian. He then referred the jury to the Explanation to Section 361 and added that the girl herself had admitted that her mother Jaibunissa was alive, her father was dead and her mother had remarried Abbas who has given evidence in the case and who in fact is the complainant.

The view that the learned Judge took was that it was the natural mother Jaibunissa who was the lawful guardian of Sharifa and that it was not competent to Abbas to file the complaint merely because he may have been maintaining the girl after he married Jaibunissa. The learned Judge thought that, since Jaibunissa had not been examined by the prosecution, it cannot be said to have been proved that the girl had been removed from her custody without her consent; that is why he directed the jury to hold that one essential ingredient under Section 361 had not been proved. In other words, the learned Judge told the jury that, even if the prosecution had established the fact that the girl was below 18 years of age and that she had been kidnapped by the accused without the consent of Abbas, that would not bring the accused within the mischief of Section 366. The correct ness of this view is disputed before us in the present appeal.

4. The principal contention which Is raised for our decision in the present appeal is that the learned Judge was wrong in holding that, in the circumstances proved in the present case. Abbas was not the lawful guardian of the minor girl Sharifa. It is also urged that, in any event, the question whether Abbas can be treated as the lawful guardian of Sharifa or not was a question of fact which the learned Judge ought to have left to the jury to decide after explaining to them the scope of the Explanation to Section 361. Before dealing with these questions, it would be convenient to mention one or two facts which are relevant. The learned Judge seems to have assumed that Sharifa stated in her evidence that her father is dead. We do not see any such statement made by Sharifa on the record of the case and so it is clear that the learned J

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