High Court · 2024
Legal Reasoning
6 901.Cri.Application-2068-2024.doc produced on the next date at the time of visit of the Committee.11.The examination in chief of PW No.6 shows that witnesshad received a telephonic call from the applicant that an infantwas brought to the children home. His cross-examinationdiscloses that he had instructed applicant to produce a child onthe next day. Infant was brought in the children home a nightearlier and was required to be kept there overnight. PW No.6 isthe member of the Child Welfare Committee. There is a candidadmission that there was a telephonic talk between him and theapplicant on 19.04.2016.12.I have considered statement under Section 313 of Cr.P.C. Itreflects the defence of the applicant. Though learned trial Judgedisbelieved PW No.6, prima facie there is material to show thatapplicant had instructed one of the members of the ChildWelfare Committee and on his instruction it was kept at childrenhome in question. It is a matter of record that PW Nos.7 to 10did not support the prosecution case. They are caretaker, nurseand social worker. I have also considered the appreciation ofdeposition of PW No.10. She is a social worker and she is said tohave received phone call from the accused in the night at 08:00to 09:00 pm., informing that the child was received in thechildren home. On the next day, when she was about to registerinfant, police personnel visited and conducted inspection. Thesaid witness is elaborately cross-examined as she did not 7 901.Cri.Application-2068-2024.doc support the prosecution. PW No.10 was disbelieved becausethere is a discrepancy of date in the deposition. The purport ofthe depositions and the probative value of the witnesses whichare hostile needs to be stayed at the hearing of the appeal,however prima facie there is a material to show that infant wasreceived a day prior to the incident. I have consideredingredients of Section 370(1)(e)(iv). It is not a prosecution casethat infant in question is exploited either psychically or sexually.On the contrary it has been recorded by learned Judge inparagraph no.96 that there was no exploitation, physicalexploitation of the child in question. It is further not the case oftransfer of the infant so far as fraud and deception on the part ofthe applicant is concerned there is no sufficient evidence todisclose that applicant is indulged in any fraud or deception. Onthe contrary the deposition of PW No.6 and 10 indicate thataccused has informed the concerned authority for havingreceived an infant a day earlier to the incident in question.Therefore at this juncture it is doubtful whether prima faciethere is any material to satisfy the ingredients of offence underSection 370 of IPC. I have also gone through the conclusionsrecorded by learned Sessions Judge in paragraph no.85 of theimpugned judgment. Prima facie it reveals that there is nomaterial to indicate that infant in question was trafficked fromTardev and brought at children home in question at Nanded. Itis a matter of record that offence bearing C.R. No.94/1996 wasregistered with Tardev Police Station in respect of illegal 8 901.Cri.Application-2068-2024.doc transaction of illegal adoption of an infant to Mr. and Mrs. Pawar.By intervention of the Family Court at Bandra, interim custodywas entrusted to the alleged adoptive parents. It further revealsthat the proceeding of quashment of FIR are pending beforePrincipal Seat and investigation has been stayed by the interimorders.13. The findings recorded by learned Judge in paragraph no.96discloses that the offences of human trafficking were on andlearned Judge felt that it was alarming situation that severalchildren gone missing everyday. Taking judicial notice of thescenario in the society and inference was drawn by the learnedJudge that the applicant having been indulged in the traffickingan infant. Prima facie I am of the view that there is no cogentmaterial to show cause of the offence registered at Tardev,Mumbai bearing C.R. No.94/2016 and the unaccounted presenceof the infant in question at children home at Nanded. Thefulfledged hearing is required to appreciate the finding recordedin this regard.14.Though the applicant is convicted for offences underSection 370(1)(e)(iv) and sentenced to suffer rigorousimprisonment for ten years, I have reservation for sustainabilityof the conviction and sentence. Applicant is also sentenced foroffence under Section 33 and 34 which are comparatively of thelesser gravity. Those offences are punishable for imprisonment 9 901.Cri.Application-2068-2024.doc for _____. The applicant was released on bail and there is noreport of any misuse of liberty. Therefore I find that a case ismade out to exercise jurisdiction under Section 389 of Cr.P.C. tosuspend the sentence.15.The applicant was taken into custody on 20.05.2024. Hehas placed on record certain medical papers to show history ofepilepsy. The record is of private hospital. A discharge summaryof Shri. Ganga Hospital Nanded discloses seizure disorder of theapplicant and his hospitalization for 24.04.2024 to 25.04.2024.On 20.05.2024, the applicant was required to refer to civilhospital Nanded for medical checkup. Case papers show historyof epilepsy for last eight years and occurrence of history ofepilepsy, seizure on 20.05.2024. It also refers the appraisal ofseriousness of the ailment of the applicant to son in law of theapplicant namely Ramesh Shankarrao Khade. Case papers showsthat applicant suffered episode of epilepsy at 03:00 am in themorning. There is no reason to doubt the medical papers of thecivil hospital. Applicant is the patient of the epilepsy and is notkeeping good health. Therefore on medical ground also I am ofthe considered view that applicant needs to be enlarged on bail.Hence I passed the following order.(Operative Order) SHAILESH P. BRAHME JUDGENaJeeb...
Arguments
1 901.Cri.Application-2068-2024.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADCRIMINAL APPLICATION NO. 2068 OF 2024INCRIMINAL APPEAL NO. 495 OF 2024NAGESH VITHAL GUTTEVERSUSTHE STATE OF MAHARASHTRA...Advocate for Applicant : Mr. Joydeep ChatterjiAPP for Respondents/State : Mr. C.V. Bhadane... CORAM : SHAILESH P. BRAHME, J. { VACATION COURT } DATE : 31st MAY 2024. Per Court :.Heard learned Counsel Mr. Joydeep Chatterji for applicantand learned APP Mr. C.V. Bhadane for respondent/State.2.Applicant seeks suspension of substantive sentenceawarded by learned Additional Sessions Judge-I, Nanded inSessions Case No.37/2017 vide judgment and order dated20.05.2024. Applicant has preferred an appeal challengingconviction and sentence which is admitted. Applicant is convictedfor offence under Section 33 and 37 of Juvenile Justice (Careand Protection of Children) Act 2015 and for offence underSection 370(i)(e)(iv) of the Indian Penal Code. He is sentenced 2 901.Cri.Application-2068-2024.doc to suffer rigorous imprisonment for six months and to pay fine ofRs.10,000/- and in default to payment of fine to suffer simpleimprisonment for two months for offence under Section 33 and37 of the Act of 2015. He is further sentenced to suffer rigorousimprisonment for ten years and to pay fine of Rs.1,00,000/-. Indefault of payment of fine he is to suffer rigorous imprisonmentfor about three years for offence under Section 370(i)(e)(iv) ofthe IPC. 3.Applicant is seeking suspension of sentence on merits aswell as on medical grounds for which certain medical papers areplaced on record. Applicant has paid amount of fine and receiptto that effect is placed on record. On the date of conviction he istaken into custody. Applicant has placed on record relevantdeposition and the record for considering his application.Learned APP has also not raised any objection regarding thesufficiency of the record and prepared to go on with the hearingof the application.4.Learned Counsel Mr. Joydeep Chatterji submits thatapplicant was enlarged on bail during the course of trial and theorder is placed on record. It is submitted that no offence can bemade out punishable under Section 370(i)(e)(iv), as the basicingredients of Section 370 have not been fulfilled. No case ismade out for exploitation transfer, fraud or any deception.Learned Counsel would heavily rely upon the deposition of PW-6 3 901.Cri.Application-2068-2024.doc – Dr. Waseeuddin Mujawar and especially the admission in thecross-examination to buttress that it was not a case of any fraudor deception and the presence of the infant was duly informedon 19.04.2016. It is further submitted that it has been recordedby learned Judge that it was not a case of actual physicalexploitation of the infant in question. It is being submitted thatprima facie it is a case of acquittal and at the most it would bean offence under Sections 33 and 34 of the Act of 2015.5.Learned Counsel for the applicant seeks to rely upon theserious physical condition of the applicant as the applicant hashistory since 2017 of epilepsy. The medical papers of civilhospital Nanded are pressed into service to demonstrate thatapplicant has history of epilepsy since last eight years andimmediately after surrender he was found to be serious andrequired to be admitted in the hospital. Considering the physicalcondition he is entitled to be released on bail by suspendingsentence.6.Learned APP opposes the submissions of the applicant. It issubmitted that wife of the applicant is facing an investigation inC.R. No. 94/2016 registered with Tardev Police Station, whereinit is alleged that an infant was found to have been sold to acouple for Rs.1,80,000/- and the same infant was found to betrafficked at the children home in question at Nanded. LearnedAPP would submit that there is cogent evidence, statement 4 901.Cri.Application-2068-2024.doc under Section 164 and further documentary evidence to bringhome the guilt of the accused. He would submit that learnedJudge is justified in convicting and awarding sentence to theapplicant. He would submit that accused is indulged into seriousoffence and no renieancy can be shown by suspending thesentence.7.I have considered the submissions of the parties and alsogone through the relevant record of the Sessions CaseNo.37/2017. Though learned Counsel for the applicant has reliedupon order dated 29.08.2016 passed in Criminal Application No.4627/2016, enlarging applicant on bail during trial, theobservations and the findings recorded therein cannot enure tothe benefit of the applicant. The applicant has sufferedconviction and sentence after fulfledged trial. Therefore interimorder of bail may not be useful to consider the claim forsuspension. I propose to look into the relevant material placedon record and the findings recorded by learned Judge whileawarding conviction and sentence.8.It is the case of the prosecution that applicant is found tohave surreptitiously indulged in the offence of Trafficking aninfant of 9 to 10 months old. When the members of the ChildWelfare Committee visited Smt. Sunita Utteshishigruhar, CIDCO,Nanded which is registered children home, on 20.04.2016, it wasfound that one female infant was found without there being any 5 901.Cri.Application-2068-2024.doc record. Committee inspected relevant documents and theregisters and found that intake of children home was tenchildren and an additional infant was found to have beenunaccounted. Thereafter law was settled to motion andinvestigation was conducted. Prosecution examined 11witnesses. The defence of the applicant was that a day prior tovisit of the Child Welfare Committee that is on 19.04.2016,infant in question was left with the children home. Applicant hadduly informed one of the members of the Committee regardingpresence of the infant in question and he was directed toproduce infant on the next date.9.I have gone through the judgment impugned and relevantdeposition of the witnesses. It reveals that PW Nos.7 to 10 didnot support the prosecution and they were required to be cross-examined. The statements of PW Nos. 7 to 10 were recordedunder Section 164 of the Cr.P.C.10.It is the defence of the applicant that the infant which wasfound to be unaccounted was received by children home on19.04.2016. Infant was being left by unmarried mother at thechildren home. Applicant informed telephonically to PW No.6who was one of the members of Child Welfare Committeeregarding receipt of the infant and he was informed on precedingnight. The applicant was being instructed to produce the child onthe next date and accordingly infant was kept with the home and