Madhya Pradesh High Court
Ajai Lall vs The State Of Madhya Pradesh on 28 November, 2022
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 28th OF NOVEMBER, 2022
MISC. CRIMINAL CASE No. 55481 of 2022
BETWEEN:-
AJAI LALL S/O LATE VIJAY LALL, AGED ABOUT
64 YEARS, R/O GRAM MARHOTAL AAM
CHOPRA TEHSIL AND DISTRICT DAMOH (M.P.)
.....PETITIONER
(BY SHRI SHASHANK SHEKHAR, SENIOR ADVOCATE WITH SHRI
SAMRESH KATARE, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION DAMOH (RURAL) DISTRICT
DAMOH (M.P.) (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI PRASHANT SINGH, ADVOCATE GENERAL, SHRI A.A.
BARNAD, ADDITIONAL ADVOCATE GENERAL AND SHRI VIJAY
SONI, GOVERNMENT ADVOCATE)
This application coming on for admission this day, the court passed the
following:
ORDER
Apprehension of arrest has given rise to filing of this first application on behalf of the applicant under Section 438 of the Code of Criminal Procedure for grant of anticipatory bail, in connection with Crime No.729/2022 registered at Police Station Damoh (Rural), District Damoh (M.P.) for the offence punishable under Section 370 of IPC, Sections 42, 75 of Juvenile Justice (Care and Protection of Children) Act, 2015 and Sections 3, 5 of the Madhya Pradesh Freedom of Religion Ordinance, 2020.
Learned senior counsel for the applicant sanguinely submits that the Signature Not Verified Signed by: SUDESH KUMAR SHUKLA Signing time: 11/29/2022 5:19:04 PM 2 applicant has been fallaciously incriminated inasmuch as the allegations made against him or his related institution, are wholly baseless and in fact nothing but a fallacy. He accentuates that if the offfences registered against the applicant are seen, the only offence punishable under Section 370 of IPC is non-bailable, whereas rest ones are bailable. Focusing on the contents of FIR, he propounds that the allegations made therein run short of the required ingredients for constituting the offence under Section 370 of IPC and more precisely such offence is not made out at all. Taking strength from the documents made appendage to the application, learned senior counsel submits that it is clear that Section 4 of M.P. Freedom of Religion Ordinance, 2020 provides and specifies the categories about who can make a complaint to the police. He adds that under those categories, the complainant does not fall and as such complainant who is holding the post of Chairman of National Commission for Protection of Child Rights (NCPCR) has exceeded its jurisdiction while lodging the report to the police. He further submits that under the provisions of Commission for Protection of Child Rights Act, 2005 the duties and powers of the said authority are enshrined, in that Section 13 bespeaks about the functions which can be performed by the authority under which he can inspect the institution, like which is run and controlled by the applicant and further Section 15 elucidates, on an inspection if any irregularities are detected, then the authority can take further steps or seek permission from the Supreme Court or High Court. He pinpoints that the authority cannot draw own inference directly or take any consequential action thereof. Vigorously, Shri Shekhar submits that offence under Section 370 of IPC is not made out inasmuch as there is no allegation made by any of the person or parents of any child that they have been forcibly immured or there was any characteristic indicating trafficking of a person. Paradoxically, when Signature Not Verified Signed by: SUDESH KUMAR SHUKLA Signing time: 11/29/2022 5:19:04 PM 3 complainant during the course of inspection found a child, aged about 17 years, participating in the process of becoming Padri, then he took away the child and for that act, according to learned senior counsel, the parents of that child made a complaint to Superintendent of Police and also filed a petition i.e. W.P.No.26435/2022 seeking for issuance of a writ of habeas corpus to release the custody of child. He submits that the intermingled facts make it clear that the applicant is unnecessarily harassed by the authority whereas no offence is made out against him. So far as the allegation made against the institution namely Mid India Christian Services are concerned, as per learned senior counsel, the applicant is not related to it at all.
In contrast, learned counsel for the State opposes the application and submits that on the face of allegations made and irregularities noticed by the authority during the course of inspection, there is nothing wrong in informing the police about it. He submits that the investigation is still going-on and as such granting benefit of anticipatory bail to the applicant would not be proper. Pointing towards the demeanour of applicant, he further submits that one case of Section 420 & 120-B IPC registered by EOW, Bhopal is also pending against the applicant, which also otherwise make him disentitle to get the benefit of anticipatory bail.
In repartee, learned senior counsel for the applicant explains that the aforesaid case was registered out of the purchase of land in which it is pointed out that there was deficit stamp duty paid by the purchaser, whereas the applicant was a seller and even in that offence, the applicant has already been admitted to bail.
On preceding date of hearing i.e. 25.11.2022, although the order granting Signature Not Verified Signed by: SUDESH KUMAR SHUKLA Signing time: 11/29/2022 5:19:04 PM 4 anticipatory bail was dictated in open Court but a subsequent request was made in post-lunch session by the Advocate General along with Additional Advocate General Shri Ashish Barnad that they wanted to advance more arguments in furtherance to the arguments already advanced by the Government Advocate to bring home the charge of Section 370 of IPC. Swallowing a bitter pill, this Court acceded to the request and directed the matter to be listed for today.
Shri Prashant Singh, learned Advocate General submits that obviously the written complaint made by the complainant Shri Priyank Kanugao was in individual capacity and not in the capacity of Chairman NCPCR, which is evident from the complaint wherein he has written his name only, not the designation. To reinforce, learned Advocate General focuses on the provision of Section 154 CrPC which bespeaks any individual can inform the police of cognizable offence, then report has to be written by the police officer. Ineluctably, he banks upon various decisions of the Apex Court in re Baldev Singh and Another v. State of Punjab (1995) 6 SCC 593; Bijoy Singh and another v. State of Bihar (2002) 9 SCC 147 and Hem Raj and another v. State of Punjab (2003) 12 SCC 241 to focus upon the enunciation of law by the Supreme Court that anybody can make a complaint to the police about cognizable offence. He submits that in the given circumstance, nothing wrong was done by Shri Kanugao consequent upon detecting commission of crime during the course of inspection. To bring home the offence under Section 370 of IPC, Shri Singh submits that when it was found that one boy aged about 17 years, resident of Dindori came to Damoh for becoming Padri, it was nothing but a case of man trafficking. More precisely, boy was minor and forced to be converted to other religion even though consent of his parents was there to Signature Not Verified Signed by: SUDESH KUMAR SHUKLA Signing time: 11/29/2022 5:19:04 PM 5 undergo such training of becoming Padri, the said consent does not wipe out the cognizance of offence u/s 370 of IPC. He accentuates that every minor has its individual fundamental rights and free right to education as per the provisions of the Right of Children to Free and Compulsory Education (RTE) Act, 2009. Equally, the State Government is obliged to ensure protection of fundamental rights of minors. To strengthen his submission, Shri Singh navigates the attention towards Explanation-2 attached to Section 370 of IPC, which provides "the consent of a victim is immaterial in determination of offence of trafficking. Emphasizing on Explanation-2 of Section 370 IPC, Shri Singh euphorically submits that in the case at hand, merely because the boy which was getting training to become Padri aged 17 years, though he himself came to Damoh for that purposes, does not succour the applicant to wriggle out from the circumference of offence u/s 370 of IPC. Adverting to another aspect, Shri Singh submits that there are certain affidavits available on record, filed by the applicant himself, which depict that the child was obtained by way of adoption from the Family Court and then his parents sent the child to a hostel run by the applicant in the name and style "Bal Bhawan Chhatrawas". As per Shri Singh, said Chhatrawas is an unregistered institution and as such offence committed by the applicant is of serious concern, which disentitles him to seek an umbrella of anticipatory bail. Of a further note, pondering over the rudimentary level of investigation, Shri Singh submits that plethora of incriminating material is yet to come to surface, however, the applicant and his associates are not cooperating with prosecution for conducting impartial investigation nor are they providing any document or record, demanded by the IO. Imprecating the extent of non- cooperation, Shri Singh submits that even the police personnel are not allowed Signature Not Verified Signed by: SUDESH KUMAR SHUKLA Signing time: 11/29/2022 5:19:04 PM 6 to enter the premises. On these premise, Shri Singh prays for outright dismissal of bail application.
Lastly, Shri Singh submits that the material available on record is prima facie sufficient to bring home the charge of Section 370 of IPC and bolstered by the law laid down in Sumitha Pradeep v. Arun Kumar C.K. and another 2022 SCC Online SC 1529, Shri Singh implores that the benefit of anticipatory bail should not be granted to the applicant. Before ceasing his arguments, he reiterated that the applicant has criminal antecedent inasmuch as one criminal case is registered against him, which according to him, is sufficient to throw light on the demeanour of applicant for discarding the possibility of showing compassion of granting anticipatory bail.
In reprisal, Shri Shekhar, learned counsel for the applicant disavows the submissions made on behalf of State and submits that even a glimpse of written complaint made by Shri Kanugao would itself testify that it was made in the capacity of Chairman, NCPCR inasmuch as the contents of complaint indicate that he inspected the premises of Bal Bhawan Chhatrawas and found alleged illegality and then made complaint to the police, although he remained under camouflage by not showing his designation, but that does not mean he did not act as Chairman. Focusing on the provision of Section 4 of Madhya Pradesh Freedom of Religion Ordinance, 2020, which provides categories of persons, who can make complaint to the complaint, learned senior counsel for the applicant submits that Ordinance 2020 is a special enactment, prevails over the general law and Section 154 of CrPC has provisions of general law and Section 154 is procedural law and therefore that would not be applicable when offence is alleged to have been committed under the provisions of Ordinance, 2020 and more precisely Section 4 cannot be diluted or made redundant in pursuance to Signature Not Verified Signed by: SUDESH KUMAR SHUKLA Signing time: 11/29/2022 5:19:04 PM 7 Section 154 of CrPC. He further submits that Section 370 of IPC applies under some specific purposes when exploitation is done but not in a routine manner. As per Section 370, exploitation is done for the purpose of recruits, transports, harbours, transfers, etc. He further submits that Explanation-2 ousts the possibility of an accused taking the defence of consent of victim to any act of physical exploitation or other form of sexual exploitation, slavery or practices similar to slavery, servitude or the forced removal of organs. He propounds that under the existing circumstances when a boy of 17 years came for education to become Padri with the consent of his parents and without any exploitation, the provisions of Section 370 IPC are not attracted. Explanation 2 does not express the way as has been tried to explain by the counsel for the respondent. He further submits that Adhar Shila is a Bal Bhawan registered under Section 41 of Juvenile Justice (Care and Protection of Children) Act, 2015 and a certificate in that regard is on record. Giving deep dent to criminal antecedent, as made basis for brushing aside the prayer of anticipatory bail by the counsel for the State, Shri Shekhar submits that such offence was registered against the applicant in relation to a property sold by him and purchaser had paid some deficit stamp duty and on a complaint made against that act, offence was registered, but that was not a crime committed by the applicant and in fact it was by the purchaser of the land. He also focuses on Article 28(3) of the Constitution of India, which deals with the religious education of a minor when consent of his guardian is not there. He submits that in the case at hand, for 17 years boy, who had been taken away by Shri Kanugao forcibly, the parents lamented before the High Court seeking for issuance of a writ of habeas corpus for releasing their child illegally detained by Shri Kanugao and respondent, which clearly indicates that offence Signature Not Verified Signed by: SUDESH KUMAR SHUKLA Signing time: 11/29/2022 5:19:04 PM 8 of Section 370 IPC is not made out, which is only non-bailable.
I have considered the overall facts and circumstances and perused the case diary and also the documents available on record.
Astoundingly, even the second round arguments made on behalf of respondent could not divert the prima facie opinion earlier made by this Court of granting anticipatory bail to the applicant. Indeed, as per the material gleaned hitherto, the required ingredients for constituting the offence under Section 370 IPC are missing, which instinctively makes the applicant entitle to get anticipatory bail. At the same time, although providing cooperation in investigation is inextricable condition under the criminal jurisprudence, but having regard to the anxiety of respondent about non-cooperation, it is expected that the applicant shall provide full cooperation and assistance during the course of investigation and make himself available as and when required by IO. Furthermore, unless the investigation is complete and charge-sheet is filed, the applicant shall not leave the country without the permission of the Court. If at any point, it is found that the applicant failed to provide full assistance, it would give a cause to the State for taking recourse to remedy of cancellation of bail.
For the present, without commenting any view on merits, I am inclined to grant the benefit of anticipatory bail to the applicant. Accordingly, this application is allowed. It is directed that in the event of arrest, the applicant be released on bail upon his furnishing a personal bond in the sum of Rs.1,00,000/- (Rupees One Lakh) with one solvent surety of the like amount to the satisfaction of the Station House Officer/Arresting Officer of the Police Station concerned.
The applicant shall abide by the conditions enumerated under Section Signature Not Verified Signed by: SUDESH KUMAR SHUKLA Signing time: 11/29/2022 5:19:04 PM 9 438 (2) of the Code of Criminal Procedure.
Certified Copy as per rules.
(SANJAY DWIVEDI) JUDGE Sudesh Signature Not Verified Signed by: SUDESH KUMAR SHUKLA Signing time: 11/29/2022 5:19:04 PM