State of Madhya Pradesh Vs. Dr. P.K. JaIn and ors. - Court Judgment

Excerpt:
criminal - discharge - statement of witness - sections 34, 120b, 372, 373, 317 and 176 of indian penal code,1860(ipc) - charged framed against respondents under sections 34,120b,372,373,317 and 176 of ipc - after appreciation of evidence trial court discharged appellants from alleged offence - feeling aggrieved, state filed present appeal - held, it is not disputed that respondent nos. 1 to 4 were caught red-handed while selling minor child - respondents selling recently born child without ascertaining satisfactorily purpose for which child is being purchased and without taking proper precautions to ensure that child may not fall in undesirable hands for any unlawful and immoral purpose within meaning of section 372 of ipc - so far as respondent no. 5 concerned, there is absolutely no allegation that he was present when deal was made between decoy customers and other co-accused persons for selling child - there is also no evidence that transaction of sale and purchase of minor child took place before him or he had knowledge of same - apart from this general statement, purported to have been made by respondent no. 2 against respondent no. 5, there is no other evidence - thus, -impugned order of discharge so far as it relates to respondent no. 5 affirmed and in respect of others set aside - resultantly, revision, as against respondent nos. 1 to 4, is allowed - constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. - 8. the prevalence in the country of the menace of children being used for unlawful and immoral purposes is too well known. 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.orderajit 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.

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.