High Court granted bail to the accused on the charges of kidnapping a minor girl

In law, there are two sorts of kidnapping: kidnapping from India and kidnapping from legitimate guardianship under Section 359 of the IPC, which can sometimes overlap.

• Kidnapping from legitimate custody: Kidnapping from a lawful guardian is a criminal crime under Section 361 of the Indian Penal Code, 1860. To commit this crime, four elements must be met: -

1.    The accused must take or entice away a minor or unsound person.

2.    The minor must be at least 16 years old for males and 18 years old for females.

3.    The accused must be away from the minor's lawful guardians.

4.    The accused is kidnapping or seducing a minor without the agreement of the legitimate guardianship.

Here Lawful guardianship refers to somebody who has been legitimately entrusted with the care and custody of a juvenile or unsound person.

Punishment for kidnapping

Section 363 of the Indian Penal Code provides for the penalty of both sorts of abduction (kidnapping from India and kidnapping from legitimate guardianship), as Imprisonment of any sort (simple or harsh), which can last up to seven years, or a fine.

The provision emphasizes that the consent of the minor or guardianship is not relevant. In this case, simply the assent of the lawful guardians would be required to invoke the section. A youngster is not legally competent to provide legitimate consent. The guardian's consent must be given freely and without influence or deceit. It is also worth noting that abduction is a strict liability violation, which means that the accused's intent is irrelevant. Thus, even if the accused took a juvenile out of the guardian's custody for a valid reason, he is still accountable for the kidnapping violation.

Punjab and Haryana High Court Judgment

The judge made the statement while granting anticipatory bail to an accused individual who had been arrested by the Fatehgarh Sahib Police on accusations of abduction and forcing a 17-year-old girl to marry.

According to a recent order by the Punjab and Haryana High Court, the accused cannot be charged with kidnapping if the minor, who is of the "age of discretion," leaves her parents' home freely. Justice Manisha Batra made the following comments while issuing anticipatory bail to an accused individual charged by the Fatehgarh Sahib Police with kidnapping a 17-year-old girl to force her into marriage.

According to the Court, it is a well-established law that any judgment on the "taking" of a juvenile from her legal guardianship must consider all relevant elements, including the girl's maturity and mental ability, which enable her to make her own decisions.

It went on to say that the accused's acts may only be seen as "facilitating the fulfillment of the prosecutrix's desire" when the girl leaves her father's or guardian's home and goes with him. Judge Batra ruled, "It does not amount to "taking" in the sense of the definition of kidnapping under Section 361 of IPC and does not fall short of an inducement to the prosecutrix to slip out of the keeping of her lawful guardian."

The Court ruled that the accused cannot be charged with kidnapping if the minor, who is of legal age, freely leaves her parent's home with the accused. This is a well-established legal principle.

In the current case, the daughter's father filed a complaint, prompting the accused's arrest in January of this year. The accused claims he was wrongly implicated in the case. He stated that, despite her family's objections, he was in a relationship with the girl and they intended to marry.

The girl, a Class XII student, informed the court in her statement acquired under Section 164 of the Code of Criminal Procedure that she opted to leave her family on her own. The Court concluded that she did not give the petitioner credit for leaving her house. The girl was 17 years and 4 months old when the Court awarded the accused relief, arguing that she was of the age of discretion and near to becoming a major.

Given the circumstances, the Court stated that the issue of whether "a case for kidnapping by way of enticing her to marry with the petitioner or force or seduce her to illicit intercourse has been made out" may be determined at the trial.

As a result, the Court ruled that neither the accused's detention nor any sort of recovery was required in this case. Thus, the accused was instructed to help with the investigation and granted anticipatory bail.

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