Judgment:
ORDER
Ajit Singh, J.
1. This revision, by the State, is directed against the order dated 17-1-2002 passed in Sessions Trial No. 14/2002, by the Special Judge (Atrocities), Bhopal, whereby she has discharged the non-applicants of the charges under Sections 372, 373, 317 and 176 read with Section 120B and 34 of the Indian Penal Code.
2. According to the prosecution case, there is one Shanti Super Specialists Hospital in Bhopal of which non-applicant Nos. 1 and 2 are the Directors. Both of them are qualified doctors. They had employed non-applicant No. 3 as Nurse and non-applicant No. 4 as Cashier in the said hospital. The non-applicant No. 5 worked as a Lab Technician in that hospital.
3. The police of Police Station, Shahjahanabad, Bhopal, received an information that the non-applicant Nos. 1 and 2, in collusion with their hospital staff, were selling newly born babies of unwed mothers from the hospital. On 9-11-2001 the Station House Officer arranged a trap against them by sending Police Constables Aziz, Loren Victor and Sanjay as decoy customers. Constables Aziz and Sanjay were asked by the non-applicant Nos. 1 and 2 in the presence of non-applicant No. 3 to pay Rs. 30,000/- when they approached them to purchase a child of three months old. Consequently, an amount of Rs. 29,000/-was arranged by witness Kamrul Islam which was given to Aziz and lady Constable Loren Victor who posed herself as wife of Aziz. Non-applicant No. 3 took Aziz, Loren Victor and Sanjay to the Chamber of non-applicant No. 2 where non-applicant No. 1 was also present. There non-applicant No. 2 asked the non-applicant No. 3 to deliver the child to them after receiving the payment. The non-applicant No. 3, on accepting Rs. 29,000/- from Aziz, delivered the child to Loren Victor. The non-applicant No.
4 was asked to keep the money in the locker. The non-applicant Nos. 1 to 4 were, thus, caught red handed while selling a newly born child of an unwed mother in their hospital. The money passed on to the non-applicant Nos. 1 to 4 was seized from them. During investigation, the police recorded the statements of witnesses Tabassum and her husband Habibuddin. According to them, they had earlier purchased a newly born child from the hospital of non-applicant Nos. 1 and 2 in collusion with the non-applicant No. 4 on payment of Rs. 25,000/- to non-applicant No. 2 as Tabassum was not conceiving a child and she feared divorce. Likewise, witness Shakeela has also alleged in her statement that she too had purchased a newly born child from the hospital of non-applicant Nos. 1 and 2 for Rs. 3500/- in collusion with the non-applicant No. 3 as she feared divorce. Rahul Singh, an Editor of 'Zee T.V.' in his statement, has alleged that the non-applicant No. 3 had agreed to sell him a baby girl of one Lata on 9-11-2001 and he was present in the hospital when the non-applicant Nos. 1 and 4 were trapped by the police.
4. A case of selling minor child was, thus, registered against the non-applicants and was committed for trial before the Special Judge, Bhopal.
5. The Special Judge, by the impugned order, has held that though there is overwhelming evidence against the non-applicants about they being caught red-handed while selling a minor child, yet they cannot be tried for the offences mentioned in the charge-sheet as the ingredients of those offences were not attracted. She also took note of the fact that some witnesses who had purchased the child were not made accused in the case. She, however, held that selling of human babies by the doctors and nursing staff is highly outrageous, unethical and immoral.
6. Shri T.S. Ruprah, Additional Advocate General for the State, has assailed the impugned order of discharge of the non-applicants on the ground that it suffers from material illegality. According to him, the Special Judge has wrongly interpreted the provision of Section 372 of the Indian Penal Code and committed gross illegality in discharging the non-applicants with impunity. On the other hand, Shri Arvind Shrivastava, learned counsel for non-applicant Nos. 1 to 4 has vehemently supported the discharge of the accused persons. He has, however, fairly conceded that there is enough material on record to hold that the non-applicant Nos. 1 to 4 were caught red-handed while selling a minor child. Shri Vijay Pandey, learned counsel for the non-applicant No. 5, has argued that there is absolutely no evidence against the non-applicant No. 5 as he was only a Lab Technician in the hospital and has nothing to do with the selling of minor babies.
7. I have perused the police case diary and the charge-sheet filed against the non-applicants. As it has not been disputed by the learned counsel for the non-applicant Nos. 1 to 4 that they were caught red-handed while selling a minor child, I am only required to see as to what offence is made out against them.
8. The prevalence in the country of the menace of children being used for unlawful and immoral purposes is too well known. Doctors in nursing homes who, contrary to all norms of professional ethics, sell a recently born child without ascertaining satisfactorily the purpose for which the child is being purchased and without taking proper precautions to ensure that the child may not fall in undesirable hands must, prima facie, be imputed with the knowledge that the child, at some age, is likely to be employed or used for any unlawful and immoral purpose within the meaning of Section 372 of the Indian Penal Code. It has to be taken notice of that the word 'likely' in the section denotes 'probability' and not 'certainty'.
Thus, I am of the considered view that an offence under Section 372 of the Indian Penal Code is clearly made out against the non-applicant Nos. 1 to 4.
9. So far as the witnesses who, during investigation, have stated that they also purchased a child from the non-applicant Nos. 1 to 4 on some previous occasion, there is nothing in their statements to suggest that they purchased the child with the requisite criminal intent or knowledge, as required by Section 373 of the, Indian Penal Code, and that they are prima facie guilty under that section. It will be another matter if, when their statements are recorded in Court, it comes out in cross-examination or, otherwise, that there are circumstances pointing to the contrary.
10. As regard non-applicant No. 5, there is absolutely no allegation that he was present when the deal was struck between the decoy customers and. other co-accused persons for selling a child. There is also no evidence that the transaction of sale and purchase of a minor child took place before him or he had the knowledge of same. According to witnesses Aziz and Sanjay, Dr. Sarla Jain (non-applicant No. 2) had, asked them that they can talk to non-applicant Nos. 3 to 5 regarding the purchase of child. Apart from this general statement, purported to have been made by the Dr. Sarla Jain (non-applicant No. 2) against the non-applicant No. 5, there is no other evidence. Thus, the impugned order of discharge so far as it relates to him is affirmed.
11. Resultantly, this revision, as against the non-applicant Nos. 1 to 4, is allowed. The trial Court shall frame a charge under Section 372 read with Sections 120B and 34 of the Indian Penal Code against them and proceed with the trial expeditiously. The non-applicant No. 1 was in jail when the impugned order was passed. He be taken into custody immediately. The non-applicant Nos. 2 to 4 were granted bail by the trial Court on the ground that they were women. They are directed to appear before the trial Court on or before 15-11-2004 for facing the trial. Needless to mention that at one stage an application was filed on behalf of the State for withdrawal of this revision which was dismissed by me by order dated 27-9-2004 as the application was vague and showed no ground whatsoever as to why it was being made. It is expected and hoped that the State will pursue the case in right earnest. The record of the trial Court be sent back forthwith with a copy of this order. One copy of this order be also sent to the Medical Council of India, New Delhi, for information.
12. The revision is partly allowed.