THE KING v. DE CROOS et al

073-NLR-NLR-V-14-THE-KING-v.-DE-CROOS-et-al.pdf


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Present: Wood Renton J.
THE KING v. DE CROOS et al.
72—D. C. (Crim.) Kandy, 2,023.
Kidnapping—-May a guardian be guilty oj kidnapping his ward f—
Contempt of Court—Penal Code, a. 352.
The third accused, who was appointed guardian by the DistrictCourt of Negombo over two minor girls under 16 years of age.placed the girls at Mount Leo Convent, Kandy, for their education,on the order of the Court. For some time the girls were in thehabit of spending their holidays in Negombo, but subsequentlythe Mother Superior declined .to allow the girls to leave Kandywithout an express order of Court. The accused moved theDistrict Court of Negombo to direct the Mother Superior to sendthe girls to Negombo for the Christmas holidays. The Court-refused the application. The accused removed the girls bystratagem from the keeping of the Mother Superior and took themto Negombo.
Held, that the accused were not guilty of kidnapping.
T
HIS was an appeal by the: Attorney-General against an acquittalby the District Judge of Kandy (F. R. Dias, Esq.)- The facts
material to this report are set out in the judgment of Wood Renton J.
Walter Pereira, K.C., S.~G., for the appellant.
H. J. C. Pereira (with him Elliott and B. F, de Silva), for therespondents.
June 9, 1911
Cur. adv. vtdt.
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June 9, 1911
The King ■v. De Croo8
June 9,1911. Woop Renton J.—
This was an appeal by the Attorney-General against the acquittalof the four respondents, who were charged in the District Court ofKandy with the offence of kidnapping two young girls from thelawful guardianship of the Mother Superior of Mount Leo Convent,in breach of the provisions of section 352 of the Penal Code. The .respondents were acquitted after trial by the District Judge. Thereis no dispute on any material points as to the facts in the case.They have been stated in a clear and most interesting manner bythe District Judge himself, and I adopt what he has said in regard;to them for the purposes of my present decision. It is necessaryin dealing with this case to keep clearly in view the facts that haveto be proved in order to constitute the offence prohibited by section352 of the Penal Code. It must be shown that (a) a minor under16 years of age, if a female, (b) was taken, (c) out of the keepingof the lawful guardian of such minor, (d) without the consent ofsuch guardian. Of these elements, two have undoubtedly beenestablished in the present case. The girls in question were under16 years of age, and they were taken away. The important pointsfor consideration, however, are whether they were so taken out ofthe keeping of their lawful guardian without the consent of suchguardian. The material facts on this point, apart from the questionof certain alleged orders of Court, to which I shall refer in a moment,are these. The girls were primarily under the lawful guardianshipof the third accused-respondent. Their father and mother are dead,and he was the guardian, who had been appointed by the CourtHe had placed them in the Mount Leo Convent in Kandy, and theMother Superior of that convent fairly admitted, as one wouldexpect from a person in her position, that she was not entitled tothe legal custody of the girls as against him, and that she had hadno dealings with any one in regard to their custody or their educationexcept with the third accused-respondent. It is clear from thesefacts that her guardianship, if guardianship it could be called, wasonly u derivative one, and it could not have been set up, if therewere no other circumstances in the case than those which I havejust stated, as against the lawful guardianship of the third accused-respondent. It may be interesting in this connection to refer to anIndian decision that throws some light on the question'with whichwe have here to deal. The case that I refer to is JaganmthaRao v. JCamaraju.1 In that case the father bad allowed bis infantdaughter to live in the house of Kamaraju. From Kamaraju’scustody the child was taken away by four cousins, and Kamarajuherself was alleged to have connived at the offence. One of thequestions raised in the case was whether she was at the time thelawful* guardian of the girl, and in deciding that point, the Court
1 {1900) 1 L. E. 24 Mad. 284.
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referred to the explanation of section 361 of the Indian Penal Code,which corresponds to section 352 of our own. That explanationis in these terms : “ The words ' lawful guardian * in this sectioninclude any person lawfully entrusted with the care or custody ofsuch minor.” The High Court of Madras made use of the followinglanguage in dealing with the point : “ The explanation of thesection says that the words ‘ lawful guardian ’ include any personlawfully entrusted, &c. Such temporary guardianship does notexclude the higher legal guardianship of the father. That remains infull force It appears to me that that is the correct interpretationof the law, and that if we had before us only the bare fact of theremoval of the girls from the keeping of the Mother Superior bytheir guardian, who had been lawfully appointed by the Court, theoffence of kidnapping could not have been made out.
It remains, however, to consider whether the guardian, the thirdaccused-respondent, has been put in a different position by virtueof two order%of Court, with which I will deal now. It must beborne in mind that as guardian, and by virtue of an express provi-sion in his letters of appointment, he was entitled to the custodyof thosv- girls. It was contended on behalf of the Crown that thatright nad been, if not taken away altogether, at least so seriouslyrestricted that the removal of the girls constituted the offence withwhich he is charged. The two orders on which reliance was placedin support of this argument are marked A 7 and A 8 in the recordof the proceedings in the Police Court. I will deal with A 8 first, asit is prior in point of time. It seems to have been the desire ofthe third accused-respondent that the girls should-be placed in a
convent at Negombo, on the ground that they were too young tobe sent elsewhere. An application was made to the District Courtof Negombo in connection with the attitude taken by the thirdaccused-respondent in this matter. On the hearing of the appli-cation the respondent undertook to send the girls to Kandy afterEaster. The Court thereupon made the following order : “ Inconsequence of the agreement of the curator ” (that is, the guardian)“ to remove the children to the convent of Kandy after Easter, ladjourn the inquiry to May 1. If the children are not removed toKandy before that date, I shall consider it a sufficient reason towithdraw the certificate.” The matter with which the DistrictCourt was concerned on that application was, not the temporaryabsence of the girls from Kandy, but their education in the meantimeat Negombo instead of at the Kandy convent. In pursuance ofhis undertaking, the third respondent did in fact send the girls toKandy. I do not think that that order can be interpreted as inany way withdrawing the girls from the legal custody of the thirdrespondent. The right to the custody of a ward is inherent in theoffice of guardian, and if it is to be entirely taken away, it mustbe so taken away, I think, in express terms.
June 9,1911
WoodRenton J.
The KingDo Croo*
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June 9, 1911
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1 come now to deal with A 7. It results from the evidence thatfor some time the girls had been in the habit of spending theirholidays with their relatives at Negombo. For some reason orother exception was taken to that on the part of the MotherSuperior, and she declined to allow the girls to leave the Kandyconvent, except upon an express order of Court. The third respond-ent took legal advice on the question, and being anxious, as hesays, to avoid any difficulty in his assertion of his legal rights asguardian, he made a formal motion to the District Court of Negombosupported by an affidavit, asking the Court to direct the MotherSuperior of the Kandy convent to send “ the children to Negombofor their Christmas holidays, and give the guardian custody of theminors '* for the purpose of taking them there. That motion wasconsidered by the District Judge in chambers. I have no doubtthat what he said about it constituted an order of Court. His orderwas in these terms : 44 This is contrary to the will. Refused.” Inspite of that order, by proceedings as to the good faith or goodtaste of which I am not here called upon to inquire, the third,respondent, with the assistance of the first, second, and fourthrespondents, did in fact remove the girls by stratagem from thekeeping of the Mother Superior and took them to Negombo. I amunable to see that the order made by the District Judge on themotion with which I have just dealt in any sense took away fromthe guardian his legal right to the custody of these children. Itprohibited him from exercising that right by the removal of thechildren from . Kandy to Negombo. But if he had come to theMother Superior and had said to her, 44 I intend to take thesechildren for their holidays from Kandy to Jaffna, ” I do not thinkthat she would have had, in law, any answer to his demand. Ifthat view is correct, it follows that he cannot be convicted of theoffence of taking the children out of the keeping of their lawfulguardian, even in the sense in which the last words are interpreted.in the explanation to section 352.
But there is a further point, which I confess strikes my mind verystrongly. The criminal act in section 352 is the taking, and it hasbeen held in India (seethe case of NemaiChattoraj v. Queen Empress1)that the offence of kidnapping from lawful guardianship is completedwhen the minor is actually taken from lawful guardianship, andthat it is not an offence continuing so long as he is kept out of suchguardianship. As I interpret the facts of this case, the taking ofthese children was no offence at all. The offence committed by thethird respondent was the removal of the children from Kandy to aparticular place, viz., Negombo, contrary to an express order ofCourt-. That may be a breach of the guardian’s duties, which wouldexpose him to punishment for contempt of court, but it is notkidnapping as I understand the law. On these grounds I think
1 (1900) 1. L R. 27 Cal. 1041.
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that the learned District Judge came to a right conclusion in theresult, when he held that all four respondents were entitled to beacquitted on the charge under section 352.
At the argument yesterday various points were touched upon, as towhich I wish to say a few words, not with any intention of decidingthem, but in order to prevent this decision from being considered tohave in any way done so. Towards the close of his judgment thelearned District Judge says : “ So long as the letters issued to him,that is, the third respondent, stand uncancelled, and they are stilluncancelled, it seems to me that no one, not even the Negombo Courthas the right to question the accused’s right to the persons of theseminors.11 That passage states a very broad proposition of law, andI only desire to say at present that I do not uphold the acquittal onthe strength of it. It was argued by Mr. Elliott yesterday, on behalfof the respondents, for he was dealing at that part of the argumentwith the case as a whole, and not merely with the interests of hisparticular clients, that the District Court would have no powerto deal with a guardian, whom it had once lawfully appointed,except by the recall of his letters of guardianship under section 591of the Civil Procedure Code. I am not certain that the learnedDistrict Judge intended in the passage quoted to go so far as that,and before any decision is given to that effect there are importantand difficult questions of law which would have to be faced. Section71 of the Courts Ordinance is still unrepealed, and it must beobserved that that section, before it confers on the Court “ full powerto appoint guardians11 over minors, expressly vests the District Courtwith the care and custody of the persons, as well as of the estates,of minors. Chapter XL. of the Civil Procedure Code deals with theappointment of guardians. It was held by Sir John Bonser C.J.,in the case of Mana Perera v. Perera Appuhamy? that the CivilProcedure Code does not limit the powers conferred on guardiansby the Roman-Dutch law. If we are to look beyond the text ofthe Civil Procedure Code for the powers of guardians, it would surelybe our duty to look beyond the provisions of that Code also for therights of the Court over guardians, particularly in view of the factthat section 71 of the Courts Ordinance expressly invests the DistrictCourt with the right and the duty of protecting the persons ofminors. It is not necessary to decide that point now. But I mayrefer to a case on which 1 have been unable to lay my hand for themoment, but in which it was held that, entirely irrespective of anyexpress enabling provisions in the Charters, the Supreme Court hadthe power to issue writs of habeas corpus, in view of the generalsupervision and control over criminal proceedings in this Islandwhich it undoubtedly enjoyed. I am by no means prepared tosay that the District Court would be bound to sit still, with fullknowledge of the fact that a minor was being taken away, and to1 (759-5) 7 A L. H. 140.
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The Kingv. Dp. Oroos
wait for some formal application for the recall of the letters ofguardianship, before it performed the duty cast upon it bysection 71 of the Courts Ordinance.
I asked the Solicitor-General yesterday whether there was anyauthority for a prosecution for kidnapping in a case of this kind.He was unable to give me any, and I have not succeeded in findingany decision on the point myself. There are cases which go rightback to the beginnings of English law, where the courts of properjurisdiction have exercised their powers for the protection of minorsand lunatics by the issue of injunctions, or by proceedings for attach-ment for contempt. I have known no case, however, where alawful guardian has been charged with the offence of kidnappingunder such circumstances as we have here before us. I have notthought it necessary to deal with the question as to whether,if a prima facie offence of kidnapping had been made out, therespondents' would not have been entitled to an acquittal on theground of the statutory exception to section 352, which providesthat the offence is not committed by any one who in good faithbelieves himself to be entitled to the lawful custody of such child,unless such act is committed for. an immoral or unlawful purpose.As I understand the language of the District Judge he has nothimself decided the question. He has acquitted the respondentson the ground that they were acting in the exercise of their legalrights. After careful consideration I do not think that theelements necessary to constitute the offence of kidnapping havebeen made out. I dismiss the appeal.
Appeal dismissed.