IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 2ND DAY OF SEPTEMBER 2013/11TH BHADRA, 1935 Bail Appl..No. 5399 of 2013 ------------------------------- CRIME NO. 541/2013 OF KASARAGOD POLICE STATION , KASARAGOD DISTRICT ... PETITIONER/ACCUSED NO.2: -------------------------------------------- PREMA, AGED 31 YEARS, W/O.RATHEESH, RESIDING AT SUNAMI COLONY, BIRANTHBAIL, KASABA VILLAGE, KASARAGOD TALUK AND DISTRICT. BY ADV. SRI.A.ARUNKUMAR RESPONDENTS/COMPLAINANT & STATE: -------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. THE STATION HOUSE OFFICER, KASARAGOD POLICE STATION(CRIME NO.541 OF 2013), KASARAGOD. R1 & R2 BY DIRECTOR GENERAL OF PROSECUTION SRI.T.ASAF ALI THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27/08/2013, THE COURT ON 02/09/2013 PASSED THE FOLLOWING: Kss 'CR' S.S.SATHEESACHANDRAN, J.
------------------------------- B.A.No.5399 OF 2013 () -------------------------------- Dated this the 2nd day of September, 2013 ORDER
~~~~~~~ Petitioner is the second accused in a crime registered at Kasaragod Police Station, which is now under investigation. She has filed the above application seeking her release on bail under Section 439 of the Code of Criminal Procedure (for short 'the Code').
2. Petitioner filed a complaint before police alleging ill-treatment and harassment, both physical and mental, by her husband, his mother and sister. She alleged that two children were born to the spouses in their wedlock and both of them boys are aged 1= years and five months respectively. While she underwent treatment in a hospital at Mangalore her husband took away the eldest child and, later, informed her that the infant died of illness. A few days earlier he took her with the youngest child to Bombay by train, and during the journey she was in the ladies B.A.No.5399/2013 2 compartment and her husband with the child in the general compartment. When she reached Bombay, her husband and child were not to be seen and she reported their missing to the railway police. They sent her back to her native place the next day. That night her husband came to the house, manhandled her and left the place taking some articles. The next morning, date of filing of her complaint, her mother-in-law and sister-in-law, both coming together, abused and threw her out of the house directing her to return only with the dowry amount. Her complaint with allegations as aforesaid led to registration of the crime under Section 498A of the Indian Penal Code naming three accused persons, her husband and his mother and sister.
3. First accused viz., Ratheesh, husband of de facto complainant, was arrested. His interrogation and materials collected in investigation revealed that de facto complainant, already mother of three children, cohabitated with him, who was then father of two children, and while B.A.No.5399/2013 3 they lived as husband and wife two children were born to them. While the first child was aged three months, he sold that infant for a sum of Rs.60,000/- and the next child, when it was aged six months old, was also sold for a price of Rs.One lakh, and both such sales of infants were done with the consent and knowledge of de facto complainant.
4. Removing the second and third accused from the crime, petitioner (de facto complainant) was thereupon implicated as second accused, and investigation of crime continued incorporating the offences punishable under Sections 317 and 370A of IPC deleting 498A of IPC incorporated earlier. Petitioner was arrested on 5.7.2013, and on production before the magistrate she was remanded to judicial custody. Her request for bail having been turned down by the magistrate and also Sessions Judge, she has moved the above application for her release from custody.
5. I have requested Sri.S.Rajeev to assist the court as amicus curie to examine what offence would lie on the B.A.No.5399/2013 4 allegations raised. Learned counsel for petitioner, Adv.Sri.A.Arunkumar, learned State Public Prosecutor, Sri.T.Asaf Ali and the amicus curie appointed, Adv.Sri.S.Rajeev, were heard.
6. Allegations in the crime imputing that the parents sold two infants receiving money for such illegal sale are no doubt shocking and revolting to human values and, if true, show the unpardonable moral depravity of the culprits. But, at this stage, when investigation is continuing and one among the accused proceeded against has applied for bail with reference to the allegations imputed, what, if any, is the offence committed by her calls for examination. Crime was registered on her complaint imputing the offence of matrimonial cruelty against her husband and his mother and sister. Investigation of the crime disclosed she with her husband sold two children, born out of their relationship, receiving money, and, thereupon, with her husband she is proceeded for offences punishable under Sections 317 and B.A.No.5399/201”
370. of the IPC.
7. Section 370A of the Penal Code has been brought in along with new provision of Section 370, substituting the previous section 370, on the recommendations made by the Justice Verma Commission, which was appointed in the wake of rape and murder of a girl in Delhi. Section 370A IPC brought in by amendment, and Section 317 IPC, the offences with which the accused in the crime are proceeded against, have to be taken note of. Section 370A of Indian Penal Code reads thus: "370A. Exploitation of a trafficked person:- (1) Whoever, knowingly or having reason to believe that a minor has been trafficked, engages such minor for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than five years, but which may extend to seven years, and shall also be liable to fine. (2) Whoever, knowingly by or having reason to believe that a person has been trafficked, engages such person for sexual B.A.No.5399/2013 6 exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than three years, but which may extend to five years, and shall also be liable to fine." Section 317 of Indian Penal Code reads thus: "317. Exposure or abandonment of child under twelve years, by parent or person having care of it:- Whoever being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both." 8. Not much dilation is required to take a view that on the allegations imputed over the sale of two infants by their parents the aforesaid penal offences may not lie. Learned State Public Prosecutor, Sri.T.Asaf Ali, fairly submitted that the allegations imputed in the crime as such would not disclose exposure or abandonment of children B.A.No.5399/2013 7 covered under Section 317 of the Penal Code or of their exploitation covered under Section 370A of that Code. The investigation of crime revealed that the infants were sold by the parents to some persons with the assistance of an intermediary, an advocate in Mangalore, according to learned State Public Prosecutor. Both children are now retrieved from persons who purchased them and infants are now in proper care and custody, is the further submission of learned State Public Prosecutor. What is the offence when sale of a child is done by its parent or any other person is the pointed question that emerges for consideration, at this stage, where it is shown that the offences imputed in the crime, namely, 317 and 370A of the Penal Code, as such may not lie. Despite the substitution of previous section 370 of the Penal Code by the new provision, an offence thereunder would lie only when there is exploitation as under any of the clauses specified in the section. A mere sale of an infant by a parent for value would not fall as an B.A.No.5399/2013 8 exploitation of the child under Section 370 of the Penal Code.
9. For the time being, it is noticed, neither Penal Code nor any other statute contain provision to penalise a person over the sale of women and children. The Law Commission of India, after taking note of the pervading social evil of sale of women and children existing in certain parts of the country and absence of any penal provision to punish the offenders thereof, took up the subject suo motu, and in its 146th report, recommended amendment of the Penal Code introducing provisions for punishment of selling of woman or minor. Laudable recommendations made by the Law Commission in the above report are yet to be adopted and incorporated in the Penal Code. Penal Code contain certain provisions to deal with trafficking of persons but they are confined to cases of one or other specified matter and those provisions are hardly sufficient to combat with the social evil of sale of women and children, for which B.A.No.5399/2013 9 a number of social economic causes are attributable, and, it being taken note of, the Commission felt that new provisions specifically penalising sale of women and children should be incorporated in the Penal Code. Women and children who are vulnerable to exploitation needs special care and protection, was the basis for such recommendations. Though some changes have been made, substituting previous Section 370 and incorporating 370A in the Penal Code on the basis of recommendations made by Justice Verma Commission, to deal with the social evil of sale of women and children no penal provision has been brought hitherto. Commission for Protection of Child Rights Act, 2005, Juvenile Justice (Care and Protection of Children) Act, 2000, Right of Children to Free and Compulsory Education Act 2009 (Central Act 35 of 2009) and Child Labour (Prohibition and Regulation) Act, 1986 are some of the enactments which have come into being to protect and safeguard the interest of children. Though some of the B.A.No.5399/2013 10 above Acts were legislated upon recognizing 'the rights of children' in terms of the United Nations Declaration of Rights of Children, to which India is also a signatory, no provision has been brought in any of such Acts to penalise those involved in the sale of children. Article 23 of the Constitution of India prohibits trafficking in human beings. Expression 'trafficking in human beings' in that article, necessarily, has to be given a wide meaning including sale of women or children, whatever be the purpose. However, the above article prohibiting human trafficking states that any contravention thereof 'shall be an offence punishable in accordance with law'. So far as trafficking of women or children for exploitation of the nature specified new provision of Section 370 of Indian Penal Code is applicable. But, so far as the sale of children, as of now, there is no offence punishable in accordance with law has been brought into force. Recommendations given by the Law Commission in its 146th report for incorporating penal provisions to B.A.No.5399/2013 11 eradicate the social evil of sale of women and children deserve immediate attention by all stakeholders who are interested in the welfare of children and women. Stringent procedures and guidelines for adoption of children from India have been brought into force by the Central Adoption Resource Authority in the wake of the directions given by the Apex Court in Lakshmi Kant Pandae v. Union of India (AIR 1984 SC 469 and recommendations made by a task force constituted later under the chairmanship of a former Chief Justice of India. However, so far as the sale of children inspite of bringing of several enactments to protect the interest of children, no penal provision has so far been brought in, that too, even after recommendations for the urgent need to do so have been made by the Law Commission in its 146th report.
10. On the facts and circumstances presented in the case, where the offences imputed under Sections 317 and 370A are prima facie found inapplicable and no other B.A.No.5399/2013 12 offence punishable under law is shown at this stage of investigation of crime, I find, petitioner has to be released on bail. If investigation discloses that she has filed a false complaint before police suppressing the sale of her children with her husband or for any other offence punishable under law, no doubt, she can be proceeded with for such offence. But, at this stage, in the given facts of the case, she is entitled to be released on bail. Petitioner is directed to be released on bail subject to the following conditions: i) Petitioner shall execute a bond for Rs.15,000/- with two solvent sureties for the like sum, by each of them, to the satisfaction of the Judicial First Class Magistrate, Ksasaragod. ii) Petitioner shall report before the investigating officer once in a week on every Sunday at a time between 10.00 a.m. and 12.00 noon for a period of eight weeks or till completion of investigation of crime, whichever is earlier. iii) Petitioner shall not leave the State for a period of six months or till completion of investigation of crime, whichever is earlier. B.A.No.5399/2013 13 I place on record my appreciation for the valuable assistance rendered by learned counsel for petitioner, Adv.Sri.A.Arunkumar, learned State Public Prosecutor, Sri. T.Asaf Ali and the amicus curie appointed in the case, Sri.S.Rajeev, for disposing this petition. Copy of the Order shall be sent to the Secretary, Ministry of Social Justice and Empowerment, Union of India, for taking appropriate steps to give effect to the recommendations given by the Law Commission in its 146th report on 'Sale of Women and Children'. Petition is allowed. S.S.SATHEESACHANDRAN JUDGE ps/2/9