LAWS(ALL)-1979-11-58

STATE Vs. JHANKAR

Decided On November 06, 1979
STATE Appellant
V/S
JHANKAR Respondents

JUDGEMENT

(1.) THIS appeal by the State of U.P. is directed against an order dated January 9, 1974 passed by Sri L.N. Agarwal, Judicial Magistrate, Shahjahanpur acquitting the opposite party in a case under Section 363, I.P.C. The case against the opposite party was that because of his strained relations in the one Kesari he kidnapped his (Kesari's) minor son Munna Lal and thereby committed an offence punishable under Section 363, I.P.C. The opposite party pleaded not guilty and attributed his false implication due to enmity. The prosecution led evidence to show that Kesari's son Munna Lal had gone to play near the Town Hall when the opposite party arrived there on a cycle and took him away saying that he would give him 'Munfhali'. He, however kept him there for two days under duress and then released him. The learned Magistrate found these facts to be more or less proved but despite that he held that the opposite party had not kidnapped Munna Lal because when he took him to his house in village Singrauli he did not do so with any criminal intention. Accordingly, he acquitted him. I may say here at once that the view taken by the learned Magistrate in this case is patently wrong. 'Kidnapping' has been defined in Section 361, I.P.C. A reading of this section would clearly show that criminal intention is not a necessary ingredient for making out an offence of kidnapping. The object of Section 361, I.P.C. is as much to protect children of tender age from being abducted or reduced for improper purposes as for the protection of the rights of parents and guardians having the lawful charge or custody of minors. Criminal intention is, therefore, foreign to this section. The moment a child is taken out of the keeping of his lawful guardian the offence of kidnapping becomes complete. The learned Magistrate therefore, completely went off the rails when he remarked that criminal intention was an essential ingredient for making out an offence of kidnapping. The view taken by the Magistrate in this case is patently wrong and on the face of it, it has resulted in miscarriage of justice. In the result, I set aside the impugned order dated January 9, 1974 and send the case back to 'the court below for retrial in accordance with law.