TMI Blog1933 (3) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... was under sixteen, it is, in my opinion, impossible to say that the verdict of the jury was perverse. The evidence, particularly that of the mother and the doctors, appears to show that the girl was probably just under sixteen at the time of the offence. But the evidence is by no means clear, and I think that the jury was justified in saying that they were not satisfied upon the point. 3. There is, however, no doubt upon the evidence that the girl was under eighteen at the time of the offence, and the question, therefore, arises whether in establishing a charge under Section 363 of the Indian Penal Code of kidnapping a minor from lawful guardianship it is necessary for the prosecution to prove that the minor, if a male, is under fourteen years of age, or, if a female, under sixteen. That question is one which I have had to consider more than once, and the answer depends upon whether the definition contained in Section 361 of the Code is to be read into Section 363. 4. The offence of kidnapping is dealt with in Section 359 and the following sections. Section 359 provides that kidnapping is of two kinds, kidnapping from British India and kidnapping from lawful guard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 361 it would be necessary either to read Section 361 as saying that whoever takes or entices any minor under the ages specified or any person of unsound mind as mentioned is said to kidnap a person from lawful guardianship, reading the words a person , in place of the words such minor or person , or to read Section 363 as providing that whoever kidnaps any person from British India or any such minor or person of unsound mind as is referred to in Section 361 from lawful guardianship shall be punished c. It is no doubt a reasonable assumption that the legislature intended the definition in Section 361 to correspond with the offence constituted by Section 363, but this in terms has not been done. Having regard to the great care and skill with which the Code is drawn, it is not improbable that the discrepancy between the two sections arose from some change in the intentions of those responsible after the Code was originally drafted, and it is at least as likely that the failure to bring the two sections into line arose from an omission to widen the definition in Section 361 by extending it to all minors, as from a failure to limit the penal section to a particular class of min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which, in the ordinary sense, would mean of persons who have a lawful guardian, that is, all persons of unsound mind, and others under eighteen or twenty-one, as the case may be, these being the two possible limits of minority. 8. In the case before us the girl in question must have been found by the jury to have been over sixteen or at least the jury must have thought that it had not been proved that she was under that age. I think, on the language of the section, that the wider construction of Section 363 is justified by its expression, but if it is the true one, there could be no conceivable object in enacting Section 361, with its different age limits, and providing no separate section to enable the offence defined in Section 361 to be punished. There is a difficulty in interpreting the two sections and the explanation seems to me to be that the legislature thought that the connection between them was sufficiently clear from the explanation in Section 361, the lack of another section punishing the offence defined in Section 361, and its obvious superfluity if viewed as a special case of the offence aimed at in Section 363 ; and that a repetition of the phrases limiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 363 so far is correct. 13. At the outset I should like to refer to certain general principles which, I think, are applicable in this case. The scheme of the Act, generally speaking, is that there is first a definition of an offence, and then a penal provision relating to it. Unless the case falls within the ambit of the definition, there is no offence. Accordingly, the sections with which we are concerned here appear in Ch. XVI, under the heading, Of kidnapping, Abduction, c. . It is clear on the authorities that the headings in a statute can be referred to for the purpose of finding out the meaning of a doubtful expression in a section. In Hammersmith c. Railway Co. v. Brand 1868 9 LRHL 171 it was observed that the headings of different portions of a statute can be referred to to determine the sense of any doubtful expression in a section arranged under any particular heading. It is equally clear that in cases of doubt the Court can have regard to the position of a particular section in an Act. After the heading we have Section 359 in these terms :- Kidnapping is of two kinds : kidnapping from British India, and kidnapping from lawful guardianship. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. Mr. Rao refers to the sections which follow Section 363. These lay down punishments for aggravated forms of offence of kidnapping as defined in Section 359, 360 and 361, and the offence of abduction as defined in Section 362, with certain objects and with certain motives, and that accounts for the expression any person occurring in those sections. It seems to be clear that wherever the word kidnaps occurs in those sections it can only be understood in the sense in which it is defined in Sections 360 and 361 read with Section 359. 15. The definitions of offences in the Indian Penal Code are exhaustive. Whenever it is provided in the definitions that whoever does such and such a thing, c., is said to do something, c., which is made punishable as an offence, the thing or things thus described are the essential ingredients of the offence, and unless a person comes within the ambit of the definition, he cannot be held to have committed the offence, e. g., Sections 339, 340, 351, 378, 415, 441, c. Reading Section 363 with Sections 359 and 361 it follows that no one can be convicted of kidnapping from lawful guardianship unless the case comes within the ambit of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the latest to be the completion of fifteen years. The fact, therefore, that the ages of fourteen and sixteen are specified in Section 361 seems to indicate that the legislature did not intend that the offences of kidnapping from lawful guardianship should depend upon the age of majority under the personal law of the Hindus and Mahomedans, and the legislature seem to have considered that for the purpose of such an offence the age limit should be reduced, Before the Indian Majority Act the legislature might very well have taken the age of sixteen for both boys and girls and this would have included all minors, whether boys or girls, Hindus or Mahomedans. It was not necessary to make any distinction as the Indian Penal Code seems to have made in Section 361 between boys and girls and fixed a lower age limit for boys and a little higher for the girls. It seems to me, therefore, even from the point of view of the policy of the legislature, that the ages of fourteen and sixteen, as the case may be, were fixed upon deliberately in the definition of kidnapping a minor from lawful guardianship in Section 361 and other factors were considered besides that of legal minority. Throughout the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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