Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 392 (KAR)

Pm Robin v. State Of Karnataka

2020-02-11

JOHN MICHAEL CUNHA

body2020
JUDGMENT 1. This petition is by accused Nos.4 and 5 in Crime No.1/2020 for grant of anticipatory bail under Section 438 of Cr.P.C. 2. Heard learned counsel for petitioners and learned High Court Government Pleader appearing for respondent. 3. Learned High Court Government Pleader has not filed any statement of objections but has orally opposed the petition. 4. The Deputy Director of Child and Women Development, Madikeri, Coorg District, lodged a complaint before the Madikeri Town Police Station alleging that on receipt of a complaint from one Sri.Kushalappa, District Convener, VHP, she proceeded to the house of A3-Smt.Saleena and found a four months old child in the house and on enquiry, A3 revealed that while she was working as Aaya in Ashwini Hospital and on 22.8.2019, a minor girl gave birth to a child in the said hospital; mother of the child refused to take the child and therefore, the child was given to her son and daughter-in-law viz. the petitioners herein (A4 and A5) by A1 and A2 and they were also given a document to the effect that the said child was born to the petitioners herein. 4.1 A reading of the complaint indicates that A3 has made a clean breast of the entire events and had narrated the manner in which the child came into possession of the petitioners herein. FIR has been registered under Sections 370(4) and (6), 465, 468, 471 r/w.34 of IPC; 80 and 81 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and 21(1) of the Protection of Children from Sexual Offences Act, 2012. 4.2 Section 370 of IPC deals with trafficking of person. In order to attract the said Section, the person accused of committing trafficking of person for the purpose of exploitation by using threats, force, or any other form of coercion or by practicing fraud or deception or by abuse or power or inducement, including the giving or receiving of payments or benefits in order to achieve the consent of any person having control over the person recruited, transported, harbored, transferred or received. Sub Section (4) and (6) of Section 370 read as under : ( 4) Where the offence involves the trafficking of a minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine. (6) If a person is convicted of the offence of trafficking of minor on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that persons natural life, and shall also be liable to fine. 5. The allegations made in the complaint do not attract the ingredients of Section 370 of IPC insofar as the petitioners are concerned. There are no allegations that the child was procured for the purpose of exploitation or that the petitioners resorted to threats, force or any other form of coercion or inducement either on the mother or to any other person. In the absence of any such allegations, the charge under Section 370 of IPC ex-facie does not attract insofar as the petitioners are concerned. 6. The allegations constituting the offences under Sections 465, 468 and 471 r/w.34 of IPC are directed only against A1 and A2 and not against the present petitioners. However, the allegations made in the complaint squarely attract Sections 80 and 81 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which reads as under :- 80. Punitive measures for adoption without following prescribed procedures: If any person or organization offers or gives or receives, any orphan, abandoned or surrendered child, for the purpose of adoption without following the provisions of procedures as provided in this Act, such person or organization shall be punishable with imprisonment of either description for a term which may extend upto three years, or with fine of one lakh rupees, or with both: Provided in case where the offence is committed by a recognized adoption agency, in addition to the above punishment awarded to the persons in-charge of, and responsible for the conduct of the day-to day affairs of the adoption agency, the registration of such agency under section 41 and its recognition under section 65 shall also be withdrawn for a minimum period of one year. 81. 81. Sale and procurement of children for any purpose: Any person who sells or buys a child for any purpose shall be punishable with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine of one lakh rupees: Provided that where such offence is committed by a person having actual charge of the child, including employees of a hospital or nursing home or maternity home, the term of imprisonment shall not be less than three years and may extend upto seven years. 7. Likewise, Section 21(1) of The Protection of Children from Sexual Offences Act, 2012, mandates that a person who fails to report the commission of an offence under sub-section (1) of Section 19 or Section 20 or who fails to record such offence under sub-section (2) of Section 19 shall be punished with imprisonment of either description which may extend to six months or with fine or with both. 8. Thus, the allegations made in the FIR prima facie attract Sections 80 and 81 of the Juvenile Justice (Care and Protection of Children) Act, 2015 and Section 21(1) of The Protection of Children from Sexual Offences Act, 2012 insofar the petitioners are concerned. But the offences are punishable with a maximum punishment upto three years. As such, there cannot be any impediment to admit the petitioners to bail. It is also submitted that the child is in the custody of the Child and Welfare Department and necessary material in support of the above accusations is already collected by the investigating agency. Hence, custodial interrogation of the petitioners is not necessary for the purpose of further investigation. 9. In the result, criminal petition is allowed . It is also submitted that the child is in the custody of the Child and Welfare Department and necessary material in support of the above accusations is already collected by the investigating agency. Hence, custodial interrogation of the petitioners is not necessary for the purpose of further investigation. 9. In the result, criminal petition is allowed . The petitioners are directed to appear before the Investigating Officer within 15 days from the date of this order and on their appearance, the Investigating Officer shall interrogate the petitioners and shall enlarge them on bail on the same day subject to the following conditions:- a. The petitioners shall furnish a bond in a sum of Rs.1.00 lakh (Rupees One lakh only) each with one surety for the likesum each to the satisfaction of the Investigating Officer; b. They shall appear before the Investigating Officer as and when required; c. They shall co-operate in the investigation; d. They shall not threaten or allure the prosecution witnesses; and e. They shall mark his attendance in Madikeri Town Police Station, Madikeri Town Circle, Kodagu, on the 15th of every month until submission of the final report.