Merely Accompanying Minor Who Left Voluntarily Not Kidnapping

Source: Madhya Pradesh High Court 

Why in News? 

A Single Bench of the Madhya Pradesh High Court, comprising Justice Pradeep Mittal, in Ravi Das Gupta v. State of Madhya Pradesh, allowed a criminal appeal filed against the order of the 2nd Additional District Judge, which had convicted the appellant under Section 363 IPC  (137(2) of BNS) and sentenced him to three years of rigorous imprisonment along with a fine of ₹1,000 for allegedly kidnapping a minor female from her lawful guardianship. 

• The Court held that the word "takes" under Section 361 IPC (Section 137(1)(b) of BNS) requires some active and positive conduct on the part of the accused that results in the minor being removed from the custody of the guardian. Since the prosecutrix had left her home voluntarily and accompanied the appellant of her own accord, the essential ingredient of "taking" or "enticing" was not made out, and the conviction could not be sustained. 

 What was the Background of Ravi Das Gupta v. State of Madhya Pradesh (2026) Case? 

• The incident in question occurred on March 15, 2013, when the prosecutrix reportedly left her house early in the morning and travelled with the appellant across multiple locations.  
• The appellant was tried for kidnapping the minor female from her lawful guardianship. 
• At trial, the prosecutrix herself testified that she had left her home voluntarily, had informed her mother, and had accompanied the appellant willingly.  
• She specifically stated that the appellant had not used any force, coercion, or inducement, and that no wrongful or sexual misconduct occurred. 
• The Trial Court acquitted the appellant of the more serious charge under Section 366 IPC but convicted him under Section 363 IPC on the ground that since the prosecutrix was a minor, her consent was legally irrelevant, and therefore the offence was made out. 
• The appellant challenged this conviction before the High Court, contending that the Trial Court had erred in its appreciation of the essential ingredients of the offence. 

 What were the Court's Observations? 

• On the Ingredients of Section 361 IPC: The Court enumerated the four essential ingredients of kidnapping from lawful guardianship as follows: (i) the person taken or enticed must be a minor — under 18 years in the case of a female; (ii) the accused must have "taken" or "enticed" the minor; (iii) the taking or enticing must be out of the keeping of the lawful guardian; and (iv) such taking or enticing must be without the consent of the lawful guardian. 
• On the Meaning of "Takes": The Court held that the word "takes" under Section 361 IPC postulates some active and positive conduct on the part of the accused — a voluntary and deliberate act — that results in the minor being removed from the custody of the guardian. Mere passivity or acquiescence, i.e., allowing a minor to accompany one of her own accord, does not constitute "taking" within the meaning of Section 361 IPC. 
• On the Irrelevance of Minor's Consent: The Court clarified that while the consent of the minor is rendered legally irrelevant by the express terms of Section 361 IPC, the requirement that the accused must have "taken" or "enticed" the minor is an independent and essential ingredient that must separately be established by the prosecution beyond reasonable doubt. The irrelevance of a minor's consent cannot be used to fill the gap of the unproven element of "taking" or "enticing." 
• On the Trial Court's Error: The Court held that the Trial Court had erred by conflating two distinct and independent legal propositions — the irrelevance of a minor's consent and the necessity of proving the act of "taking" or "enticing." Even where evidence clearly establishes that the accused neither took nor enticed the minor, and that the minor herself left the guardian's custody, the offence under Section 361 IPC is not made out, irrespective of the minor's age. The impugned conviction under Section 363 IPC was accordingly set aside as unsustainable on the evidence on record. 

 What is Section 137 of BNS?  

Section 137 BNS — Kidnapping 

Definition & Kinds: 

• Kidnapping is of two kinds: (i) kidnapping from India, and (ii) kidnapping from lawful guardianship. 

Kidnapping from India: 

• Conveying any person beyond the limits of India without their consent, or without the consent of a person legally authorised to consent on their behalf. 

Kidnapping from Lawful Guardianship: 

• Taking or enticing any child below 18 years, or any person with mental illness, out of the keeping of their lawful guardian, without the guardian's consent 
• Explanation: "Lawful guardian" includes any person lawfully entrusted with the care or custody of such child or person. 

Exception: 

• Does not apply to a person who in good faith believes himself to be the father of an illegitimate child below 18 years. 
• Does not apply to a person who in good faith believes himself entitled to lawful custody of such child. 
• Exception is unavailable if the act is committed for an immoral or unlawful purpose. 

Punishment: 

• Imprisonment of either description for a term extendable to 7 years, and fine. 

BNSS Classification: 

• Cognizable 
• Bailable 
• Triable by Magistrate of the First Class