Present: Wood Renton. J.   June.9,1911

THE KING v. DE CROOS et al.

72-D. C. (Crim.) Kandy, 2,023.

Kidnapping-May a guardian he guilty of kidnapping his ward ?- Contempt of Court-Penal Code, s , 352.

The third accused, who was appointed guardian by the District Court of Negombo over two minor girls under 16 years of age, placed the girls at Mount Leo Convent, Randy, for their education, on the order of the Court. For some time the girls were in the habit of spending their holidays in Negombo, but subsequently the Mother Superior declined to allow the girls to leave Kandy without an express order of Court. The accused moved the District Court of Negombo to direct the Mother Superior to send the girls to Negombo for the Christmas holidays. The Court refused the application. The accused removed the girls by stratagem from the keeping of the Mother Superior and took them to Negombo.

Held, that the accused were not guilty of kidnapping.

THIS was an appeal by the Attorney-General against an acquittal by the District Judge of Kandy (F. R. Dias, Esq.). The facts material to this report are set out in the judgment of Wood Renton J.

Walter Pereira, K.C., S.-G., for the appellant.

H. J. C Pereira (with him Elliott and B. F. de Silva), for the respondents.

June 9, 1911. Wood Renton J.-

This was an appeal by the Attorney-General against the acquittal of the four respondents, who were charged in the District Court of Kandy with the offence of kidnapping two young girls from the lawful guardianship of the Mother Superior of Mount Leo Convent, in breach of the provisions of section 352 of the Penal Code. The respondents were acquitted after trial by the District Judge. There is no dispute on any material points as to the facts in the case. They have been stated in a clear and most interesting manner by the District Judge himself, and I adopt what he has said in regard to them for the purposes of my present decision. It is necessary in dealing with this case to keep clearly in view the facts that have to be proved in order to constitute the offence prohibited by section 352 of the Penal Code. It must be shown that (a) a minor under 16 years of age, if a female, (b) was taken, (c) out of the keeping of the lawful guardian of such minor, (d) without the consent of such guardian. Of these elements, two have undoubtedly been established in the present case. The girls in question were under 16 years of age, and they were taken away. The important points for consideration, however, are whether they were so taken out of the keeping of their lawful guardian without the consent of such guardian. The material facts on this point, apart from the question of certain alleged orders of Court, to which I shall refer in a moment, are these. The girls were primarily under the lawful guardianship of the third accused-respondent. Their father and mother are dead, and he was the guardian, who had been appointed by the Court. He had placed them in the Mount Leo Convent in Kandy, and the Mother Superior of that convent fairly admitted, as one would expect from a person in her position, that she was not entitled to the legal custody of the girls as against him, and that she had had no dealings with any one in regard to their custody or their education except with the third accused-respondent. It is clear from these facts that her guardianship, if guardianship it could be called, was only a derivative one, and it could not have been set up, if there were no other circumstances in the case than those which I have just stated, as against the lawful guardianship of the third accused-respondent. It may be interesting in this connection to refer to an Indian decision that throws some light on the question with which we have here to deal. The case that I refer to is Jaganatha Rao v. Kamaraju1 In that case the father had allowed bis infant daughter to live in the house of Kamaraju. From Kamaraju's custo