Section 361: Kidnapping from Lawful Guardianship
Section 361 read: “whoever takes or entices any minor under sixteen year of age if a male, or under eighteen year of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.
Explanation: The words “lawful guardian” in this Section include any person lawfully entrusted with the care and custody of such minor or other person.
Exception: This Section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.”
object of Section 361: In considering the provision of Section 361 and the other cognate Section of the IPC, it is necessary to bear in mind that these provision are intended more for the protection of the minors and persons of unsound mind themselves than the rights or the guardians of such persons. It may be that the mischief intended to be punished partly consists in the violation or the infringement of the guardian’ s rights to keep their wards under their care and custody; but the more important object of these provision undoubtedly is to afford security and protection to the wards against seduction or abduction for improper purpose.
Essential Ingredients of Section 361
(1) There must be taking or enticing of:
(a) minor or
(b) a person of unsound mind;
(2) that the person kidnapping must be:
(a) under 16 years of age, if male, or
(b) under 18 years of age, if female, or
(c) a person of unsound mind;
(3) that taking or enticing must be out of the keeping of lawful guardian of the minor or person of unsound mind; and
(4) that the taking or enticing was without the consent of the legal guardian.