Offence Of Kidnapping Not Attracted If Minor Voluntarily Accompanies Accused And Caretaker Isn't 'Lawful Guardian': Calcutta High Court

Calcutta High Court, in a significant ruling dated 06 April 2026, held that a kidnapping charge under Section 363 of the Indian Penal Code (IPC) cannot be sustained if the minor voluntarily accompanies the accused and the person she was residing with does not qualify as her lawful guardian. A single-judge bench of Justice Chaitali Chatterjee Das observed that "Chhanda Bibi cannot be described as a lawful guardian of the victim and the victim voluntarily went with the accused," thereby setting aside the trial court's conviction.

The appellant was convicted by a Fast Track Court in Kolkata under Section 363 IPC for allegedly kidnapping a minor girl and taking her to a red-light area, though he was simultaneously acquitted of the charge of buying a minor for prostitution under Section 373 IPC. The prosecution claimed that the accused had taken the minor girl from the custody of one Chhanda Bibi on the pretext of purchasing garments for her. The appellant subsequently approached the High Court challenging this conviction.

The primary question before the court was whether the victim was taken out of the keeping of a "lawful guardian" as strictly required under Section 363 IPC. The court was also called upon to determine whether the minor girl had voluntarily accompanied the accused, thereby negating the fundamental element of kidnapping.

Employer Extracting Unpaid Labour Not A Lawful Guardian

Analyzing the living arrangements of the victim, the court noted glaring inconsistencies regarding why the minor was residing with Chhanda Bibi. The bench observed that the victim's mother had left her there under compelling circumstances, but the caretaker extracted unpaid domestic labour from the girl and demonstrated no genuine custodial responsibility. The court highlighted that when the girl did not return from a local function, Chhanda Bibi "never enquired about the victim girl and never lodged any missing diary nor informed her mother."

Victim Voluntarily Accompanied The Accused

The court then assessed the conduct of the minor girl, noting her age to be around 16 to 17 years. The bench found that the victim had prior acquaintance with the appellant and had travelled with him on a bicycle and a bus without raising any alarm throughout the day. Relying on the Supreme Court's precedent in Shyam and Another v. State of Maharashtra, the court held that the victim was a willing party who had not been forcefully removed from anyone's lawful care.

"A girl of that age growing up in an environment where country Liquor is sold... developed acquaintance with the appellant, left the house... did not raise objection when taken in a bicycle from there by a Bus to a place not known to her."

Absence Of Force Or Protest

The bench further emphasised that the investigating officer had recorded the victim's statement at the spot, where she disclosed that the appellant intended to marry her. The court noted that local witnesses from the area where the girl was purportedly rescued did not hear any weeping or sounds of distress. The bench concluded that the totality of evidence proved the victim went entirely of her own volition, and no allegation of sexual assault was ever levelled.

Glaring Deficiencies In Police Investigation

The judgment also heavily criticised the conduct of the raiding party and the investigating officer. The court noted that the police failed to make any General Diary (GD) entry before leaving the police station for the raid, which is a mandatory procedural requirement. Furthermore, the seizure list lacked the signatures of both the victim and the accused, and superior officers involved in the raid were never examined during the trial. The bench pointed out that the investigating officer had even misplaced the medical X-ray plate, rendering the prosecution's narrative highly suspicious.

Finding that the basic statutory ingredients of kidnapping were not established, the High Court allowed the criminal appeal and set aside the trial court's order of conviction. The court held that the trial judge had erred in convicting the appellant merely based on the victim's age while ignoring the absence of lawful guardianship, and directed that the appellant be released from his bail bond immediately.

Date of Decision: 06 April 2026