Allahabad High Court
Smt. Geeta Rakesh vs State Of U.P. on 4 January, 2023
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 47 Case :- CRIMINAL APPEAL No. - 6107 of 2018 Appellant :- Smt. Geeta Rakesh Respondent :- State of U.P. Counsel for Appellant :- Raj Kumar Mishra,Aditya Gupta,Ashish Malhotra,R.B. Singh Counsel for Respondent :- G.A.,Imran Ullah Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Shiv Shanker Prasad,J.
(Per Hon'ble Ashwani Kumar Mishra, J.)
1. Heard Sri G.S. Chaturvedi, learned Senior Advocate assisted by Sri Aditya Gupta as well as Ms. Saumya Chaturvedi for the appellant; Km. Meena, learned AGA for the State and Sri Faiz Ahmad and Sri Yashdeep Rastogi holding brief of Sri Imran Ullah on behalf of PW-2 and perused the records of the present criminal appeal.
2. This criminal appeal is directed against the judgment and order dated 6.10.2018, passed by the Special Judge (POCSO Act)/VIII Additional Sessions Judge, Agra in Special Trial No. 1848 of 2017 arising out of Case Crime No. 455 of 2017, under Sections 370(3), 370(5), 370(7), 363, 188, 120B IPC; 9 Immoral Traffic (Prevention) Act and Section 16/17 POCSO Act, Police Station - Etmaddaula, District Agra; whereby the appellant Smt. Geeta Rakesh has been convicted under Section 370(3) IPC and sentenced to 10 years rigorous imprisonment alongwith fine of Rs. 50,000/- and on its failure to undergo additional rigorous imprisonment of six months; under Section 370(5) IPC sentenced to 14 years rigorous imprisonment alongwith fine of Rs. 1,00,000/- and on its failure to undergo additional rigorous imprisonment of one year; under Section 370(7) IPC sentenced to rigorous life imprisonment alongwith fine of Rs. 1,00,000/- and on its failure to undergo additional rigorous imprisonment of one year; under Section 363 IPC sentenced to five year rigorous imprisonment alongwith fine of Rs. 1,00,000/- and on its failure to undergo additional rigorous imprisonment of one year; under Section 188 IPC sentenced to six months simple imprisonment alongwith fine of Rs. 1,000/- and on its failure to undergo additional simple imprisonment of one month; under Section 120B IPC sentenced to rigorous life imprisonment alongwith fine of Rs. 1,00,000/- and on its failure to undergo additional rigorous imprisonment of one year; under Section 9 Immoral Traffic (Prevention) Act sentenced to 10 years rigorous imprisonment alongwith fine of Rs. 1,00,000/- and on its failure to undergo additional rigorous imprisonment of one year; and under Section 16 read with Section 17 of the POCSO Act sentenced to rigorous life imprisonment alongwith fine of Rs. 1,00,000/- and on its failure to undergo additional rigorous imprisonment of one year. All the sentences are directed to run separately.
3. Accused appellant Geeta Rakesh was posted as Superintendent of Government Protection Home (Women) at Agra. It transpires that the State Authorities at Allahabad undertook an exercise referable to Section 16 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as ''the Act of 1956'), wherein sixty seven females and thirty seven children involved in immoral trafficking were rescued. These rescued victims were then produced before the magistrate exercising jurisdiction under Section 17 of the Act of 1956, who proceeded to pass an order on 21.5.2016, directing these rescued victims to be lodged at the Government Protection Home (Women) at Agra under the care and control of the accused appellant. The order dated 21.5.2016 specified the term of detention of the recovered inmates to be one year or further orders. As per this order the detainment period of one year was to expire on 20.5.2017. The accused appellant released forty three inmates alongwith their eight children between 21.5.2017 to 23.5.2017 apparently on the ground that the period of their detainment had come to an end. Release of these rescued victims by the appellant has ultimately led to her prosecution and consequential sentence.
4. It appears that the magistrate, who had passed the initial order of detainment under Section 17(4) of the Act of 1956 extended the period of detainment of these rescued victims by a further period of two years vide his subsequent order dated 18.5.2017. This order allegedly was sent by the office of the concerned magistrate by whatsapp/e-mail and also by registered post. The primary accusation against the appellant is that she released the rescued victims in derogation of the order dated 18.5.2017.
5. The fact of release of these forty three inmates alongwith their eight children in teeth of subsequent order dated 18.5.2017 was highlighted before the State authorities by Mr. Sunil Kumar (PW-2).
6. Taking note of the facts brought before the authorities a first information report came to be lodged pursuant to a written report of PW-1 against the accused appellant under Sections 370, 363, 188, 120B IPC and Section 9 of the Act of 1956 as Case Crime No. 455 of 2017. Upon conclusion of investigation a charge-sheet was filed against the accused appellant which led to her ultimate conviction in Special Trial No. 1848 of 2017 arising out of Case Crime No. 455 of 2017, under Sections 370(3), 370(5), 370(7), 363, 188, 120B IPC; 9 Immoral Traffic (Prevention) Act and 16/17 POCSO Act, Police Station - Etmaddaula, District Agra and sentence vide judgment and order dated 6.10.2018, which is assailed in the present appeal.
7. It was also brought to the notice of the authorities that the competent court at Allahabad had earlier passed orders for release of twenty two out of these 67 victims on 3.2.2017. This order of the concerned court was challenged in Special Leave to Appeal (Criminal) No. 3324 of 2017 and the Supreme Court on 13.2.2017 and again on 21.4.2017 directed the released inmates to be retrieved and lodged again in Government Protection Home (Women) at Agra.
8. The prosecution case is that sixty seven recovered victims were lodged at the Government Protection Home (Women) at Agra for a period of one year vide order dated 21.5.2016. The FIR further records that the term of detention of these inmates was extended by a period of two years vide subsequent order of the magistrate dated 18.5.2017. This subsequent order is alleged to have been served upon the accused appellant and its contents were actually perused/seen by the accused appellant on her whatsapp on 20.5.2017 itself, yet she proceeded to release forty three detainees alongwith their eight children without any order passed by the magistrate or the competent court. The action of the accused appellant in releasing forty three inmates alongwith their eight children to their alleged family members/supurdgars after obtaining notarial affidavit and undertaking, etc., amounted to offences under the IPC, POCSO Act and the Act of 1956. The FIR has been registered on the basis of a written report sent by the Deputy Chief Probation Officer, Directorate, Women Welfare, Uttar Pradesh, Lucknow dated 1.6.2017.
9. The investigation proceeded in the matter and statement of various witnesses were recorded under Section 161 Cr.P.C. Statement of two inmates, who had yet not been released, was also recorded under Section 164 Cr.P.C. Various teams were sent to locate the released inmates but they were not found at their disclosed addresses and an inference was drawn that these inmates may have landed in immoral trafficking, once again. Doubts were also expressed regarding the supurdgars' relationship with the inmates. The Investigating Officer also collected documents regarding dispatch of subsequent order dated 18.5.2017 extending the term of detainment of these victims and proceeded to submit a charge-sheet against the accused appellant on 21.8.2017. The magistrate took cognizance on the charge-sheet and committed the case to the court of sessions. The court of sessions consequently framed following charges against the accused appellant:-
"मै, सुनील कुमार मिश्र, विशेष न्यायाधीश/ (Pocso Act) /अपर सत्र न्यायाधीश, न्यायालय संख्या-17, आगरा आप गीता राकेश को निम्न आरोप से आरोपित करता हूँः-
प्रथमः यह कि राजकीय संरक्षण गृह (महिला), आगरा की अधीक्षिका के पद पर रहते हुये आपको उप जिला मजिस्ट्रेट, सदर इलाहाबाद के आदेश दिनांक 21.05.2016 के तहत 67 पीडिताएं और 37 बच्चो को एक साल या अग्रिम आदेश तक के लिये नारी संरक्षण गृह (महिला), आगरा में आवासित किये जाने का आदेश दिया गया था। इनमें से 22 पीडिताओं को अपर सत्र न्यायाधीश, इलाहाबाद के आदेश से मुक्त कर दिया गया था। उप जिला मजिस्ट्रेट, सदर, इलाहाबाद ने अपने आदेश दिनांक 18.05.2017 से शेष बची 45 पीडिताओं और उनके बच्चों को एक साल के लिये और आवासित किया और उक्त आदेश की तामीला के बाबजूद आपने इन पीडिताओं में से 43 पीडिताओं व उनके बच्चों को बिना समुचित आदेश के दिनांक 21.05.2017 से 23.05.2017 के मध्य किसी समय पर राजकीय संरक्षण गृह (महिला), अंतर्गत थाना - एत्माद्दौला, जिला आगरा में अवमुक्त कर दिया। चुंकि अवमुक्त की गयी पीडिताओं की संख्या काफी है और पीडिताए अवमुक्त होने के बाद अपने अंकित पते पर मौजूद नही मिली। पीडिताओं को अवमुक्त करते समय उनके संबंध में समुचित अण्डरटेकिंग व आई०डी०प्रूफ आदि भी नहीं मिले, जिससे उनके दुर्व्यापार में सम्मिलित होने की प्रबल सम्भावना है। इस प्रकार आपने धारा 370 (3) भारतीय दण्ड संहिता के अंतर्गत दण्डनीय अपराध किया है, जो इस न्यायालय के प्रसंज्ञान में है।
द्वितीयः यह कि उपरोक्त दिनांक, समय व स्थान पर आपके द्वारा अवमुक्त की गयी 43 पीडिताओं के साथ उनके अवयस्क बच्चों को भी अवमुक्त किया गया, जिससे कि बच्चों से भी दुर्व्यापार कराया जाएगा। इस प्रकार आपने धारा 370 (5) भारतीय दण्ड संहिता के अंतर्गत दण्डनीय अपराध किया है, जो इस न्यायालय के प्रसंज्ञान में है।
तृतीयः यह कि उपरोक्त दिनांक, समय व स्थान पर आपने उक्त कार्य लोक सेवक होते हुये किया है। इस प्रकार आपने धारा 370 (7) भारतीय दण्ड संहिता के अंतर्गत दण्डनीय अपराध किया है, जो इस न्यायालय के प्रसंज्ञान में है।
चतुर्थः यह कि उपरोक्त दिनांक, समय व स्थान पर आपको उप जिला मजिस्ट्रेट, सदर, इलाहाबाद के आदेश से उक्त तिथि पर जिन पिडिताओं व बच्चों को राजकीय नारी संरक्षण गृह (महिला), आगरा में आवासित करने के लिये दिया गया था। उनके संरक्षक उस समय उप जिला मजिस्ट्रेट, सदर, इलाहाबाद थे और उनकी अनुमति के बिना आपने उन पीडिताओं व बच्चों को अवमुक्त कर दिया। इस प्रकार संरक्षक की सहमति के बिना पीडिताओं और बच्चों को हटाकर आपने धारा 363 भारतीय दण्ड संहिता के अंतर्गत दण्डनीय अपराध किया है, जो इस न्यायालय के प्रसंज्ञान में है।
पंचमः यह कि उपरोक्त दिनांक, समय व स्थान पर लोक सेवक होने के नाते आपका यह कर्तव्य था कि आपके ऊपर जिस आदेश को प्रख्यापित किया जाय, उसका आप अनुपालन करें। आपने उप जिला मजिस्ट्रेट, सदर, इलाहाबाद दिनांक 18.05.2017 की अवज्ञा की। इस प्रकार आपने धारा 188 भारतीय दण्ड संहिता के अंतर्गत दण्डनीय अपराध किया है, जो इस न्यायालय के प्रसंज्ञान में है।
षष्टमः यह कि उपरोक्त दिनांक, समय व स्थान पर आपने जिन 43 पीडिताओं और उनके बच्चों को बिना किसी समुचित आदेश के अवमुक्त किया, दौरान विवेचना उन पीडिताओं में से ज्यादातर अपने अंकित पते पर नहीं मिली तथा कुछ स्थानों पर ताले लगे हुये मिले, जो पूर्व से प्रशासन द्वारा सील किये गये थे। इन पीडिताओं को अवमुक्त करते समय आपने समुचित तरीके से आई०डी०प्रूफ व अण्डरटेकिंग नहीं ली, जिससे यह बात प्रमाणित होती है कि आपके द्वारा इन पीडिताओं से वैश्यावृत्ति कराने के उद्देश्य से मानव तस्करों के साथ मिलकर एक षडयन्त्र किया गया। इस प्रकार आपने धारा 120 बी भारतीय दण्ड संहिता के अंतर्गत दण्डनीय अपराध किया है, जो इस न्यायालय के प्रसंज्ञान में है।
सप्तमः यह कि उपरोक्त दिनांक, समय व स्थान पर आपके द्वारा जिन 43 पीडिताओं व बच्चों को उपरोक्त कथित मानव तस्करों की ओर से दिये गये प्रलोभन के तहत अवमुक्त किया गया। इस प्रकार आपके द्वारा धारा 9 अनैतिक व्यापार (निवारण) अधिनियम के अंतर्गत दण्डनीय अपराध किया है, जो इस न्यायालय के प्रसंज्ञान में है।
अष्टमः यह कि उपरोक्त दिनांक, समय व स्थान पर आपके द्वारा 43 पीडिताओं व बच्चों को यह जानकारी रखते हुये अवमुक्त किया गया कि उनका उपयोग पाक्सो अधिनियम के अंतर्गत गठित विभिन्न अपराधों में किया जाएगा। इस प्रकार आपने उनको अवमुक्त करके उनको पाक्सो अधिनियम के अंतर्गत विभिन्न अपराध करने के लिये दुष्प्रेरित किया है। इस प्रकार आपने धारा 16/17 पाक्सो अधिनियम के अंतर्गत दण्डनीय अपराध किया है, जो इस न्यायालय के प्रसंज्ञान में है।
एतद्द्वारा मैं आपको निर्देश देता हूँ कि आपका उपर्युक्त आरोपों पर विचारण इस न्यायालय द्वारा किया जावे।"
10. The contents of charges were read out to the accused who denied the charges and demanded trial.
11. Prosecution in order to prove its case produced oral and documentary evidence which shall be dealt with hereinafter. The documentary evidence led by the prosecution were duly exhibited and included the first information report dated 1.6.2017 as Ex.Ka.3; written report dated 1.6.2017 of Punit Kumar Mishra, Dy. Chief Probation Officer, Directorate, Women Welfare, UP Lucknow as Ex.Ka.1; U.P. Directorate Application dated 31.5.2017 as Ex.Ka.3; written report dated 31.7.2017 as Ex.Ka.6; Statement under Section 164 Cr.P.C. dated 9.7.2017 of victim Sona as Ex.Ka.7; Statement under Section 164 Cr.P.C. dated 5.7.2017 of victim Anita as Ex.Ka.8; Application to BSNL dated 30.8.2018 by Rakesh Kumar as Ex.Ka.3; Order of Police Superintendent dated 9.6.2017 as Ex.Ka.11; Fax Receipt as Ex.Ka.14; Certified copy of speed post receipt as Ex.Ka. 15; Certified Copy of E-mail Receipt as Ex.Ka.16; Certified Copy of Dak-bahi as Ex.Ka.17; Certified copy of Whatsapp messages as Ex.Ka.18; Letter of SDM Sadar Allahabad dated 13.6.2017 as Ex.Ka.13; Certified Copy of SDM Order dated 18.5.2017 as Ex.Ka.19 and Final Form/ Report as Ex.Ka.9.
12. The prosecution has also produced Punit Kumar Mishra, the Deputy Chief Probation Officer posted in the office of Directorate, Women Welfare, U.P., Lucknow as PW-1, who has reiterated the contents of the first information report in his examination-in-chief. He has stated that the object of placing these inmates in the Protection Home was to ensure rehabilitation of the victims and the exercise in that regard was being undertaken under the Act of 1956 in which the term of detention was extended by a further period of two years, but contrary to the orders of the competent authority, the accused appellant has released these inmates, as a result of which the inmates may have landed again in trafficking, resulting in their exploitation and would defeat the object for which they had been rescued and lodged in the Protection Home. He has also stated that the description of family members of these inmates, as was mentioned in the documents, was subsequently found to be false and at variance with their actual addresses, and that most of these inmates were not found on the addresses shown in the release orders. He has further stated that the relationship of alleged family members were also not ascertained by holding their DNA test, etc., as it was apprehended that the alleged family members of inmates were not the family members but were persons engaged in immoral trafficking who would have restored these inmates to immoral trafficking leading to their exploitation. This witness has also been cross examined. He has stated that a direction was issued by the Director Women Welfare U.P. for an FIR to be lodged in the matter but there was no specific direction to lodge FIR against the accused appellant. He has verified the contents of the written report on the basis of which the FIR itself was lodged. He has feigned ignorance about the provisions under which offences were conducted by the accused appellant except Section 9 of the Act of 1956. He has categorically stated that he has no personal knowledge with regard to service of order dated 18.5.2017 upon the accused appellant. He has also stated that report of the District Probation Officer and the complaint of Sunil Kumar is on record as per which the inmates were prematurely released. He has however denied the suggestion given to the witness that the order extending the term of detainment was not communicated to the officer concerned. He has no information that any of these forty three inmates made any complaint to the competent authority about their being put back into prohibited activities.
13. Sunil Kumar has been adduced as PW-2, who represents Guriya Swayam Sevi Sansthan which is a registered society engaged in eradication of human trafficking and child prostitution and claims that on account of their intervention about 2500 victims have been got released so far. He has stated that on a communication sent by him to the District Magistrate, Allahabad on 19.4.2016, the authorities proceeded to take action in respect of the alleged trafficking and sexual exploitation of females at Allahabad. A PIL was also filed by him on which directions were issued. It was in furtherance of complaint made by PW-2 that 67 females and 37 children were rescued and lodged at the Government Protection Home (Women) at Agra under an order of the magistrate passed in exercise of his jurisdiction under Section 17(4) of the Act of 1956. He claims that the order extending the term by a further period of two years was actually served upon the appellant by Fax on 19.5.2017 and also by e-mail, whatsapp and registered post on 20.5.2017. He further claims that the SDM Sadar Allahabad personally informed him that the accused appellant has seen the whatsapp and e-mail containing the order dated 18.5.2017 sent to her. He has also stated that on 27.5.2017 he came to know that despite the order passed by the magistrate the accused appellant has released forty three victims alongwith their eight children in a criminal conspiracy for their ultimate trafficking and sold these inmates to brothel owners. He further claims that complaint in that regard was also sent to State Government on 29.5.2017. He claims that his statement under Section 161 Cr.P.C. was recorded by the Investigating Officer on 14.6.2017. This witness has been cross examined wherein he admits that he is not a member of Guriya Swayam Sevi Sansthan. He claims that he is only a social activist working in the field for nearly three years. He also claims that he is aware of the whatsapp; e-mail and fax, etc. He has shown ignorance about the policy of the Central Government for dispatch of official communication through official e-mail or whether the e-mail was actually sent to the accused appellant pursuant to such policy. He is not aware of the date of dispatch of communication by registered post. He has not seen the dispatch register. He is not aware of the telephone number of the accused appellant, nor he is aware of her whatsapp; fax or e-mail number. He has stated that SDM Sadar had informed him that the contents of the order dated 18.5.2017 were seen by the accused appellant on 20.5.2017 at around 5 pm, on her whatsapp. He has denied the suggestion that accused appellant had no whatsapp, e-mail ID and that a false statement has been given by him in that regard.
14. PW-3 is Constable Hoshiyar Singh, who has verified the Chik FIR. PW-4 is Inspector Yogendra Yadav, who claims that he was posted at police station Etmaddaula as Sub-Inspector and on the direction of the Investigating Circle Officer, he had gone to trace the inmate Roopa D/o Rubir through her supurdgar Manmaya wife of Chandra Bahadur at Pune. He claims that on the given address the inmate was not found. No information about the supurdgar could be collected either. In the cross-examination this witness has admitted that photograph of Roopa was not available in the records and that her photograph was seen by him on whatsapp.
15. Sub-Inspector Satendra Singh is PW-5, who similarly has gone to locate the inmates Pooja and Babita at Jalpaiguri in West Bengal, but they could not be traced. He has however stated that on inquiry he found that inmate Pooja D/o Sanjay is working as a Cook at Jalpaiguri and Babita is living at Calcutta. Their supurdgars could be contacted by the witness. In the cross-examination, he admitted that the details with regard to his arrival at Jalpaiguri was not mentioned nor the details have been given in his statement under Section 161 Cr.P.C. It is also admitted that he did not visit Calcutta to trace out the whereabouts of Babita.
16. PW-6 Sona is one of the inmates, who in her statement under Section 164 Cr.P.C. had claimed that she was not released by the accused appellant alongwith other inmates, as she had no money to bribe her. However, in her statement made before the Court this witness has stated that she was lodged in the Protection Home and was not released as her parents had not come to take her. She has specifically denied the allegation that inmates were released by the accused appellant after receiving bribe. This witness has been declared hostile. In the cross-examination this witness has stated that she had given a false statement under Section 164 Cr.P.C.
17. PW-7 Anita is another inmate, who too has not stated anything against the accused appellant in her statement before the Court. She has however, stated that her statement was earlier recorded under Section 164 Cr.P.C.
18. PW-8 is Sub-Inspector Nityanand Pandey, who too had made attempts to trace out inmates Anita and Pinki, who had been released to their family members at Basti. He claims that these inmates were not traceable at the given address. This witness has been cross examined and has admitted that he did not carry any photograph of the inmates who he wanted to trace and has denied the suggestion that he has actually not visited Basti to trace out the inmates.
19. PW-9 is the Investigating Officer, who was posted as Circle Officer, Chhatta and has proved the charge-sheet. In his cross-examination, he has admitted that no complaint was received from any of the inmates and that he has no knowledge whether the inmates were minor or not. He has admitted that he has no information about the age of the inmates. He has also admitted that for an offence of criminal conspiracy there must be more than one person and that in this case apart from the accused appellant there is no other person accused as conspirator. He admitted that during the course of investigation the SDM Sadar Allahabad, who had passed the order of detainment and its extension has not been interrogated and his statement under Section 161 Cr.P.C. has not been recorded. He has also admitted that details of phone number of SDM Sadar or whatsapp number or official whatsapp number, fax number of the accused appellant Geeta Rakesh are otherwise not available on record. He also admitted that he is not the designated authority under the Act of 1956. He has admitted that no information by the SDM Sadar Allahabad with regard to extension of inmates term to the accused appellant is available in the case diary.
20. PW-10 B.S. Tyagi is the first Investigating Officer, who stated that on 17.6.2017 he had recorded the statement of Sub-Inspector Azad Pal Singh, who had gone to locate the inmates on their given address at Allahabad, but they were not found. In the cross-examination, he has admitted that he was not the designated officer under the Act of 1956, yet he had arrested the accused appellant on 1.6.2017. He too has stated that he has not personally met the SDM Sadar Allahabad, nor has he recorded his statement under Section 161 Cr.P.C. As per him the Fax number in the office of SDM Allahabad as well as his whatsapp and e-mail ID have been mentioned in the case diary on 11.6.2017 in the statement of Umashankar. In the same statement mobile number of Sanjiv Khare working in the office of SDM Sadar has also been mentioned as 9450509758 from which the contents of the order dated 18.5.2017 was sent by mobile to the accused appellant on her mobile number 9457020485. He has admitted that he has not made inquiries with regard to the aforesaid two mobile numbers nor details in that regard are mentioned in the case diary. He further states that he has not met Sanjiv Khare. He has admitted that mobile number and fax number of accused appellant is not mentioned in the case diary. This witness has clearly stated that all inmates released by the accused appellant were major. He has also admitted that for an offence under Section 363 IPC to be attracted the person enticed must be shown to be a minor.
21. PW-11 Anand Pal Singh, is a member of the team deputed to locate the inmates released by the accused appellant and the inmates have not been located at their given addresses. Supurdgars however were located and they disclosed the whereabouts of the released inmates.
22. PW-12 is one Deepak Prajapati, who was posted as Collection Amin in the office of Sadar Tehsil at Allahabad. He claims that Samar Patel was posted as Steno in the office of SDM Sadar Allahabad, where he was also posted, and he has seen Samar Patel working in the office. Samar Patel was posted as Steno in the office of District Magistrate, Allahabad. He admits that summons were actually issued for appearance to Samar Patel, but instead of Samar Patel it is he, who has appeared alongwith records on the instructions of the Sub Divisional Magistrate, Sadar, Allahabad. He has filed certified documents. The testimony of this witness is important as he is the only person who has supported the prosecution case about dispatch of the communication dated 18.5.2017 to the accused appellant. He is also the main witness who has verified the alleged service of the order dated 18.5.2017 upon the accused appellant. This witness has stated that the term of detention of 67 inmates and 37 children at Government Protection Home (Women), Agra was extended by two years vide order dated 18.5.2017. The copy of the order dated 18.5.2017 has been filed by him in Court and its original is stated to be available in the office records. The original copy of the order dated 18.5.2017 has not been produced and its xerox copy certified by the authorities has been exhibited on record as A-13. An objection with regard to its admissibility is raised by the defence. Photocopy of alleged Fax has been exhibited as K-14, while copy of the dispatch by registered speed post has been marked as Exhibit K-15. Photocopy of dispatch register maintained in the office has also been exhibited. Exhibit K-18 is the alleged whatsapp communication which is in the nature of a photocopy containing two blue tick marks with a certification annexed on the document stating that the contents have been sent from the mobile of one Sanjiv Khare no. 9450509758 to the accused appellant on her mobile number 9457020485 at 4.56 pm on 20.5.2017.
23. Exhibit K-19 is also a certified copy of the communication of the order dated 18.5.2017 extending the period of detainment by a further period of two years. The testimony of PW-12 along with cross-examination is extracted hereinafter:-
"नाम साक्षी- दीपक प्रजापति पिता का नाम- स्व० बुलाकीलाल प्रजापति उम्र- 48 वर्ष पेशा- नौकरी, निवासी-38 सी बेली रोड नया कटरा, इलाहाबाद ने सशपथ बयान किया कि-
मै वर्तमान में संग्रह अमीन, तहसील सदर, इलाहाबाद के पद पर तैनात हूँ। समर पटेल, स्टेनो उप जिलाधिकारी कार्यालय, सदर इलाहाबाद में तैनात थे। वहां पर मै भी अमीन के पद पर तैनात हूँ। मै समर सिंह पटेल को जानता हूँ तथा उनको लिखते पढ़ते देखा है। समर पटेल वर्तमान में जिलाधिकारी, इलाहाबाद के कार्यालय में स्टेनो के पद पर तैनात है। समर पटेल के नाम के द्वारा जारी समन के आधार पर मुझे उप जिलाधिकारी, सदर इलाहाबाद द्वारा इस मुकदमें से सम्बन्धित चाहे गये दस्तावेज के साथ साक्ष्य हेतु भेजा गया है। जिस पत्र के द्वारा मुझे आदेशित किया गया है, वह मै साथ लाया हूँ, जिसे मै पत्रावली पर दाखिल कर रहा हूँ।
कार्यालय उपजिलाधिकारी, सदर इलाहाबाद द्वारा दिनांक 13/06/2017 को पत्रांक संख्या 4470/एस०डी०एम० सदर-एस-17 के माध्यम से इस मुकदमें के विवेचक बी०एस० त्यागी क्षेत्राधिकारी, छत्ता जनपद आगरा को दिनांक 18/05/2017 को जरिये फैक्स/स्पीड पोस्ट/पंजीकृत/ईमेल/व्हाटसअप के माध्यम से डाक संख्या 115 दिनांक 19 व 20/05/2017 को इलाहाबाद के अर्न्तगत क्षेत्र मीरगंज में अनैतिक व्यापार अधिनियम 1956 के अर्न्तगत की गयी कार्यवाही में मुक्त कराई गयी पीड़िताओ को उप जिला मजिस्ट्रेट, सदर के आदेश दिनांक 21/05/2016 अर्न्तगत धारा 17(4) अनैतिक देह व्यापार अधिनियम 1956 द्वारा 67 संवासनियो एवं 37 बच्चो को एक वर्ष की अवधि तक राजकीय संरक्षण, गृह आगरा में भेजा गया था, जिसकी अवधि दिनांक 18/05/2017 को बढ़ाकर दो वर्ष के लिए कर दी गयी थी। उक्त बढ़ाई गयी समयावधि के आदेश को अधीक्षिका, आगरा एवं अन्य अधिकारियो को भेजे गये थे, जो उप जिलाधिकारी, सदर इलाहाबाद के हस्ताक्षरित पत्र, इस पत्रावली में मौजूद है। जिसकी कार्यालय प्रति मै आज अपने साथ लेकर आया हूँ। जिसकी मूल पत्रावली पर उपलब्ध है। मूल को रिकाँर्ड से मिलान कर लाये गये कार्यालय रिकाँर्ड से मिलान कर साबित किया गया। जिस पर प्रदर्श क-13 डाला गया। जिस पर अभियुक्त के विद्वान अधिवक्ता की ओर से आपत्ति की गयी।
इस पत्र के साथ संलग्न फैक्स रसीद एस०डी०एम० सदर, इलाहाबाद द्वारा दिनांक 19/05/2017 की प्रमाणित है, जिसे उप जिलाधिकारी, सदर इलाहाबाद द्वारा अपनी सील एवं हस्ताक्षर से प्रमाणित की गयी है। जिसकी मूल प्रति मै साथ लेकर आया हूँ। जो मिलान कर मूल की छाया प्रति है। पत्रावली पर उपलब्ध फैक्स रसीद पर प्रदर्श क-14 डाला गया। जिस पर अभियुक्ता के विद्वान अधिवक्ता द्वारा आपत्ति की गयी। एस०डी०एम० सदर इलाहाबाद द्वारा भेजे गये पत्र जो इस मुकदमें के विवेचक बी०एस० त्यागी को भेजा गया था, के अतिरिक्त जिलाधिकारी, आगरा, अधीक्षिका राजकीय संरक्षण गृह आगरा, जिला प्रोवेशन अधिकारी, वरिष्ठ पुलिस अधीक्षक, आगरा को पंजीकृत डाक से पत्र भेजे गये थे, उनकी मूल डाक रसीद मै अपने साथ लेकर आया हूँ। मूल डाक रसीद की छाया प्रतियां एस०डी०एम० सदर, इलाहाबाद की सील एवं हस्ताक्षर से प्रमाणित है। रसीदे पत्रावली पर मौजूद है, मै उनके हस्ताक्षर की शिनाख्त करता हूँ। रसीदो पर प्रदर्श क-15 डाला गया। जिस पर अभियुक्ता की ओर से आपत्ति की गयी। उप जिलाधिकारी, सदर इलाहाबाद द्वारा दिनांक 19/05/2017 को समय 08.54 पी०एम० पर अभियुक्त गीता राकेश को उनके ईमेल आई०डी० पर जरिये ईमेल उपरोक्त आदेश की प्रति प्रेषित की गयी। जिसे गीता राकेश द्वारा दिनांक 19/05/2017 को 09.01 पी०एम० पर खोलकर पढ़ा गया। इस ईमेल संदेश आदान-प्रदान की मूल प्रिंट को मै आज अपने साथ लेकर आया हूं जिसकी फोटो प्रति एस०डी०एम० सदर इलाहाबाद द्वारा अपने हस्ताक्षर व सील से प्रमाणित की गयी है, जो पत्रावली पर मौजूद है। जिस पर प्रदर्श क-16 डाला गया। जिस पर अभियुक्ता की ओर से आपत्ति की गयी।
उप जिलाधिकारी सदर इलाहाबाद द्वारा अपने आदेश दिनांकित 18/05/2017 को अपने डाक वही क्रमांक 115/एस०डी०एम० सदर/18/05/2017 का इन्द्राज अपने डाक रजिस्टर में करते हुए इस आदेश को राजकीय संरक्षण गृह, महिला अधीक्षिका, आगरा व जिलाधिकारी इलाहाबाद, जिलाधिकारी आगरा, एस०एस०पी० इलाहाबाद, एस०एस०पी० आगरा, जिला प्रोवेशन अधिकारी आगरा को भेजा गया। वह मूल डाक बही/रजिस्टर मै अपने साथ लेकर आया हूँ। जिसकी छाया प्रति उप जिलाधिकारी, सदर इलाहाबाद द्वारा प्रमाणित कर दाखिल कर रहा हूँ। उनके हस्ताक्षरो की मै शिनाख्त करता हूँ। जिस पर प्रदर्श क-17 डाला गया। जिस पर अभियुक्ता की ओर से आपत्ति की गयी। एस०डी०एम० सदर इलाहाबाद के आदेश दिनांकित 18/05/2017 को उनके कार्यालय में कार्यरत लेखपाल श्री संजीव खरे के मोबाइल नम्बर 9450509758 द्वारा राजकीय संरक्षण गृह, आगरा की अधीक्षिका श्रीमती गीता राकेश के मोबाइल नम्बर 945(अस्पष्ट)020485 व दिनांक 20/05/2017 को समय 04.56 पी०एम० पर व्हाट्सअप किया गया है, जिसकी रंगीन प्रिटंआउट जिसमें व्हाट्सअप के रिसीव डबल ब्लू टिक साइन मौजूद है तथा इस रंगीन व्हाटसअप की प्रिंटआउट पर एस०डी०एम० सदर इलाहाबाद महोदय ने इस आशय का प्रमाणपत्र अपने हस्तलेख में दिया है। मै उनके हस्तलेख व उनकी सील मुहर व मूल हस्ताक्षर (का०फटा) तस्दीक करता हूँ। जिस पर प्रदर्श क-18 डाला गया। जिस पर अभियुक्ता की ओर से (का०फटा) गयी। उप जिलाधिकारी सदर इलाहाबाद के आदेश दिनांकित 18/05/2017 पत्रांक संख्या (का०फटा) जो अधीक्षिका राजकीय संरक्षण गृह, महिला आगरा के नाम संबोधित है, आदेश विषय राजकीय संरक्षण गृह महिला आगरा में आवासित थाना कोतवाली इलाहाबाद में पंजीकृत अभियोग संख्या 119/2016 की पीड़िताओं व बच्चो के अनैतिक व्यापार अधिनियम 1956 की धारा 17(4) के तहत पारित आदेश की प्रमाणित प्रतिलिपि कुल 08 वर्क मे मौजूद है। मूल आदेश मै आज उप जिला मजिस्ट्रेट सदर इलाहाबाद के कार्यालय से अपने साथ लाया हूँ। यह मूल आदेश भी 08 वर्क का है। प्रमाणित व मूल आदेश का अक्षरशः मिलान किया गया, जो एक ही है। इस आदेश पर कार्यालय की मुहर एवं हस्ताक्षर मौजूद है। जिसे आज मैं पुनः प्रमाणित कर रहा हूँ। जिस पर प्रदर्श क-19 डाला गया। जिस पर अभियुक्ता की ओर से आपत्ति की गयी।
प्रति परीक्षा द्वारा अभियुक्ता x x x x x यह कहना सही है मुझे न्यायालय से गवाही के लिए समन नही मिला था। संजीव खरे लेखपाल कार्यालय में सम्बद्ध थे तथा कार्यालय का कार्य देखते थे। यह कहना गलत है कि संजीव खरे फील्ड वर्क करते हो और कार्यालय का कार्य नही करते हो। संजीव खरे का मोबाइल मैने नही देखा है। न ही संजीव खरे ने मेरे सामने मोबाइल का प्रयोग किया।
मेरी ड्यूटी रेवेन्यू कलेक्शन के लिए है। मै फील्ड वर्क के लिए जाता हूँ। मै सुबह 09 बजे फील्ड में जाकर 12 बजे तहसील में आ जाता हूँ और शाम को पांच बजे वहाँ से वापस आ जाता हूँ। गीता राकेश का मोबाइल नम्बर मुझे नही मालूम। गीता राकेश को मैं नही जानता हूँ। मैं केवल मांगा गया रिकार्ड अपने अधिकारी के कहने पर न्यायालय में लेकर आया हूँ और उसी रिकार्ड के संबंध में मैंने अपना साक्ष्य दिया है। मुझे गीता राकेश के किसी फोन के विषय में कोई जानकारी नही है।
यह कहना सही है कि प्रदर्श क-13, दिनांक 13 जून 2017 का है। प्रदर्श क-14 जीराक्स प्रमाणित प्रति है। प्रदर्श क-14 किसको भेजा गया, यह प्रमाणित नही है। प्रदर्श क-15 प्रमाणित छाया प्रति है। इस रसीद से क्या भेजा गया, यह कवरिंग पत्र में लिखा होगा। रसीद में नही लिखा है। मै नही बता सकता कि जा भी मजमून भेजा गया, वह प्राप्तकर्ता पर कब पहुंचा।
मुझे नही मालूम कि गीता राकेश की कोई ईमेल आई०डी० है या नही। मै अधीक्षिका कार्यालय में ईमेल, व्हाटसअप या फैक्स की क्या सुविधाये है, इसकी जानकारी नही रखता हूँ। मै नही बता सकता कि गीता राकेश के कार्यालय में ईमेल, व्हाटसअप या फैक्स की सुविधा नही है। मुझे इसकी भी जानकारी नही है कि प्रदर्श क-17 से भेजा गया पत्र कार्यालय में किस तारीख को पहुंचा। यह कहना गलत है कि प्रदर्श क-18 से भेजा गया व्हाटसअप फर्जी हो तथा नही भेजा गया हो। यह कहना गलत है कि प्रदर्श क-19 फर्जी बनाकर तैयार किया गया हो। यह कहना सही है कि यह मेरे सामने किसी को नही भेजे गये। यह कहना गलत है कि कोई भी फैक्स, ईमेल, व्हाटसअप या पत्र गीता राकेश अधीक्षिका को प्राप्त नही हुए हो तथा उसे फंसाने के लिए बाद में फर्जी प्रपत्र तैयार किये गये हो। यह कहना गलत है कि जो प्रपत्र मैंने दाखिल किये है, वह फर्जी हो। यह कहना गलत है कि मै आज न्यायालय में झूठी गवाही दे रहा हूँ।"
24. Incriminating material produced during the trial, noticed above, has been put to the accused appellant who has denied the accusations in her statement under Section 313 Cr.P.C. She has stated that in the year 2016, she had filed a writ petition for her promotion and some persons were opposed to her who were also impleaded as a party and that she has been discriminated only because she belongs to scheduled caste. She has also stated that Principal Secretary, Women Welfare was annoyed with her and that is why she has been falsely implicated by upper caste officers.
25. The accused appellant has also entered the witness box as DW-1 and has clearly stated that the order dated 18.5.2017 was never served upon her nor she had any knowledge about issuance of such an order. She has categorically stated that the order dated 18.5.2017 was received by her in her office on 24.5.2017 at 2.15 pm whereby the term of detainment was extended by two years but by then all the 43 inmates had already been released by her. She has stated that after 20.5.2017 she could not detain any of the inmate, even for a day, and any detainment of inmates would have exposed her to accusations later. She stated that the inmates were released to their family members including brothers and sisters whose notarial affidavits were taken and their undertakings were also taken on record. These inmates were all major and their request letters for release are available on record. She has stated that there is no facility of e-mail; fax or whatsapp in her office and that she has not received any e-mail; fax or whatsapp from the office of the SDM Sadar Allahabad. She has stated that all documents evidencing dispatch of the order dated 18.5.2017 by e-mail; whatsapp are fabricated and forged. She has also stated that for the last 19 years she has not been promoted and as her claim was not considered she approached the High Court and only because of it the higher authorities were annoyed with her. She has further stated that under orders of the Supreme Court, the District Judge, Agra is the ultimate authority in respect of the affairs of the Protection Home and she had sent communication to the District Judge informing him that the period of detainment of these inmates was to expire on 20.5.2017. She further claims that in response to such communication the District Judge vide his order dated 4.5.2017 and 20.5.2017 directed her to comply with the orders of Sub Divisional Magistrate Sadar Allahabad. She claims to have filed such orders but apparently they are not part of records of the present appeal. In the cross-examination, DW-1 has stated that apart from 67 female inmates, the SDM Sadar Allahabad had also sent 29 minor children who are being looked after by the Child Welfare Committee and she exercised no control in respect of these 29 inmates. The eight inmates released were actually minor children of the 43 female inmates lodged in the Protection Home. She has denied the suggestion that the communication of order dated 18.5.2017 was received by her by whatsapp; e-mail or fax.
26. DW-2 Rakesh Kumar is the other defence witness who is the husband of the accused appellant. He is a teacher working in a Government Institution at Etawah. He lives in his official accommodation and is working since 2009. He has stated that there are three kinds of mobile SIM namely ordinary SIM, nano SIM and micro SIM. He has categorically stated that Mobile Number 9457020485 is his mobile number issued by BSNL and is being utilized by him. He has produced the mobile phone alongwith SIM during the course of trial and the same has been exhibited as Exhibit-B. He has categorically stated that facility of whatsapp; e-mail or fax was never available on his mobile number. This witness has also been cross examined and has denied the suggestion that whatsapp and e-mail could be operated on any SIM.
27. It is on the basis of above evidence led during the course of trial that the court below has come to the conclusion that the prosecution has succeeded in establishing the guilt of accused appellant beyond reasonable doubts. The court below has held that the order dated 18.5.2017 was duly served upon the accused appellant and her action of releasing the 43 inmates contrary to the orders of the Sub Divisional Magistrate amounted to an offence as these 43 inmates are likely to again land up in activities prohibited under the Act of 1956 and, therefore, she has committed offence under various sections of the IPC.
28. The conviction and sentence awarded to the accused appellant is assailed in the present appeal on various factual and legal grounds.
29. Sri G.S. Chaturvedi, learned Senior Counsel for the appellant submits that the accused appellant had acted bona fidely and as the detainment of inmates was only for a period of one year, as such she could not have kept the inmates in the protection home beyond the period of one year and her action in releasing the inmates was legal and proper. He further submits that the order extending the term of detainment of inmates was never served upon the accused appellant and there is no evidence on record to demonstrate the service of order dated 18.5.2017 upon the accused. He also submits that the alleged service by e-mail, fax or whatsapp are electronic modes of service which are not admissible as there is no certificate available under Section 65-B of the Evidence Act and this aspect of the matter has been completely overlooked by the court below. He further submits that the dispatch of communication has otherwise not been proved, since the dispatcher i.e. SDM Sadar, Allahabad has neither appeared as a witness nor the person in his office, who allegedly dispatched the letter, has been produced. He further argued that the non-availability of e-mail, fax or whatsapp in the office of the Superintendent of Government Protection Home (Women), Agra has also not been taken into consideration. Sri Chaturvedi further submits that the original records of the office of SDM Sadar containing the order dated 18.5.2017 have also not been produced and exhibited during the course of trial and in the absence of any reason of its absence the secondary evidence in the form of certified copy of the communication cannot be looked into. He emphatically argued that even if the prosecution version is taken its entirety, yet, no offence under the IPC or the Act of 1956 is disclosed. With reference to the prosecution evidence brought on record, learned Senior Counsel contends that the prosecution witnesses have clearly admitted the 43 inmates to be major and no evidence was otherwise led to prove their minority, and therefore the provisions of the POCSO Act are not shown to be attracted in the facts of the present case. The 08 minors released are stated to be the children of 43 inmates, who were their guardians, and therefore none of the offences under the POCSO Act could even remotely be attributed to the accused. Sri Chaturvedi also placed reliance upon the directions issued by the Supreme Court in its various orders, as per which the District Judge, Agra was the ultimate supervisory authority in respect of the affairs of the Government Protection Home (Women) and the appellant duly intimated him and sought his guidance when the term of release of inmates was coming to an end and she was told by the District Judge, Agra to act in terms of the order of Sub-Divisional Magistrate. Submission, therefore, is that the accused appellant acted lawfully in releasing the inmates after entertaining their applications alongwith notarial affidavits of their family members. He submits that offence under Section 188 IPC also could not have been attributed to the accused appellant as cognizance in respect thereof could only be taken on a complaint by virtue of Section 195 IPC and the court below has erred in recording conviction of accused under it. Learned Senior Counsel lastly submits that the authorities of the State acted in an undue hot haste on the complaint made by PW-2 without verifying the records, which has resulted in denial of rights of the accused appellant, who has been unnecessarily kept in incarceration for more than six and a half years.
30. Sri Faiz Ahmad has appeared for PW-2 and submits that the conviction and sentence of accused appellant is just, legal and valid and requires no interference in appeal. He argues that the object of inmates recovered from Mirganj, Allahabad was to ensure their proper rehabilitation so that they are not forced to undergo exploitation as sex workers. He submits that the directions of the Supreme Court and the provision of the Act of 1956 as well as Rules of 1993 have been violated by the accused appellant, who has acted in undue hot haste, for extraneous reasons, in releasing inmates contrary to the orders of the Magistrate, as a result of which these inmates are no longer traceable and in all likelihood may have landed again in prostitution. He further submits that the authority to release these inmates was the Chief Inspector and not the Superintendent of Government Protection Home (Women) and her action in releasing the inmates contrary to the directions of the Supreme Court are wholly without an authority of law. He also submits that the evidence adduced by the prosecution clearly shows service of the order dated 18.5.2017 upon the accused and the finding of the court below, in that regard, warrants no interference.
31. Km. Meena, learned AGA for the State, while adopting the argument of Sri Faiz Ahmad submitted that undue hot haste was shown by the accused appellant in releasing the inmates immediately upon expiry of their detainment period without obtaining any guidance from the concerned Sub-Divisional Magistrate shows her complicity in the matter. She also contends that two of the remaining inmates were not released, in similar circumstances, which clearly shows that release of inmates was for extraneous consideration and the two inmates have also specifically stated so in their statement under Section 164 Cr.P.C. She submits that considering the serious consequences which followed for the 43 inmates, their conviction and sentence is proper.
32. It is in the context of the above submissions that this Court is required to examine as to whether the accused appellant has rightly been convicted and sentenced for offences committed by her or not. The legality of release also needs to be examined. The trial court has formulated following issues for consideration in the matter:-
1. Whether 43 inmates alongwith their children had been placed in the custody of accused Geeta Rakesh, Superintendent, Government Women Protection Home, Agra vide order dated 21.5.2016 for a period of one year/till further orders by the SDM Sadar, Allahabad and whether there was any direction in it to release the inmates?
2. Whether accused Geeta Rakesh has illegally released 43 inmates alongwith their children before expiry of their detainment period and whether she was competent to do so or any competent authority having jurisdiction had directed her to do so?
3. Whether it was mandatory to obtain sanction under Section 197 Cr.P.C. before proceeding against the accused appellant?
4. Whether this matter could be pursued only upon a complaint filed under Section 195(1)(a) Cr.P.C. or not?
5. Whether investigation is faulty and it was not undertaken by the designated officer?
6. Analysis of evidence led by the prosecution and the defence in respect of the charges levelled against the accused?
33. On the first issue trial court has held that inmates were lodged for a period of one year/further orders vide order dated 21.5.2016 and there was no authority with the Superintendent to release them upon completion of the period of detainment. At best, upon receiving any application for release of the inmates, the Superintendent could have referred the matter either to the Chief Inspector or the competent court. On issue no.2 the court below has held that the 43 inmates alongwith their children were lodged pursuant to the order of the SDM, who alone was competent to direct to release of these inmates and as no orders have been passed by him, the action of accused appellant in releasing these 43 inmates with their 8 children was without jurisdiction. On issue no.3 the court below opined that as charges against the accused appellant included Section 370 IPC, therefore, by virtue of proviso to Section 197 no prior permission was required for initiation of penal action in respect of the offences committed by the accused.
34. In respect of issue no.4, it has been observed by the court below that no preliminary objection was raised on behalf of accused before the court below and as the offences are not just limited to Section 188 Cr.P.C. but included offence under the Act of 1956, therefore, it cannot be said that only on the basis of complaint the accused could be prosecuted. On issue no.5 the court below has observed that though initially the investigation was done in the matter by Inspector Brijesh Kumar Pandey but the main investigation was done by B.S. Tyagi. Reliance has been placed upon Government Order dated 17.7.2003 in which offences under the Act of 1956 have been permitted to be investigated by Assistant/Deputy Superintendent of Police within their territorial jurisdiction and as B.S. Tyagi was holding such office, the investigation cannot be faulted. On issue no.6 the trial court has analyzed the evidence led by the parties to hold that the prosecution has succeeded in proving the guilt of accused appellant beyond reasonable doubt of offences attributed to her, and therefore, her conviction is accorded. Considering the gravity of the offences the court below has sentenced the accused appellant.
35. Before adverting to the issues raised in the present appeal in light of the evidence led by the parties and the argument advanced, we deem it appropriate to refer to certain orders passed by the Supreme Court in the matter relating to affairs/management of the Government Protection Home (Women), Agra. A Writ Petition (Crl.) No.1900 of 1981 came to be filed before the Supreme Court under Article 32 of the Constitution of India by Dr. Upendra Baxi and others (II) Vs. State of U.P. and others, which came to be decided on 23.7.1986 vide judgment reported in (1986) 4 SCC 106. Concerns relating to conditions in which girls were living in the Government Protection Home (Women) at Agra and denial of their right to live with basic human dignity was the issue raised in the matter. Various directions were issued in the matter by the Supreme Court. We would confine ourselves to the directions which may have bearing for the present purposes. The direction contained in para 6 and 9 of the judgment has been highlighted before us and is reproduced hereinafter:-
"6. Fourthly, the Superintendent of the Protective Home shall take care to see that no woman or girl is detained in the Protective Home without due authority and process of law. The District Judge, Agra who carries out monthly inspection of the Protective Home shall verify during every visit that no woman or girl is detained except under the authority of law and if he finds that any of them is detained without any authority of law, he shall take steps to see that she is released and repatriated to her parents or husband or other proper authority.
9. The District Judge, Agra or any other Additional District Judge nominated by him shall visit the Protective Home once every month for the purpose of ensuring that the aforesaid directions given by us are carried out fully and effectively and he shall submit an Inspection Report to this Court on/or before the 15th of every month."
(Emphasis supplied)
36. We may also refer to the judgment passed in the same petition reported earlier in (1983) 2 SCC 308 (Dr. Upendra Baxi (I) Vs. State Of Uttar Pradesh And Another). The Supreme Court in respect of release of inmates referred to the provisions of the Rules framed under Section 23 of the Act of 1956 readwith section 21 of the General Clauses Act vide notification dated 6.2.1961, containing Rule 37, which empowered the State Government to discharge any inmate, at any time, either absolutely or on such conditions as is deemed appropriate. Vide order dated 29.1.1982 in the aforesaid petition the Supreme Court issued following directions:-
"....... The District Judge, Agra will visit the Protective Home immediately and submit detailed report to us in regard to the present position of the girls lodged in the Protective Home as also in regard to the conditions prevailing there. This report will be submitted by the District Judge to this Court on or before February 10, 1982 and when the report is submitted, one copy to Mr. R.K. Bhatt learned Advocate appearing on behalf of the respondents. One copy of the directions and orders made by the Court from time to time may also be supplied to Dr. Sodhi who has really brought this matter before the Court through the petitioners."
37. The directions of the Supreme Court, extracted above, are not shown to have been arrived or rescinded and we are informed at bar that the District Judge, Agra continues to oversee the affairs of the protection home. We may also note that in supersession of the Rules of 1961 the State of Uttar Pradesh has framed the Uttar Pradesh Immoral Traffic (Prevention) Rules, 1993, which contains provisions with regard to establishment of protective homes/corrective institutions. Rule 2(h) defines Superintendent in following terms:-
"(h) "Superintendent" means the Principal Officer in charge of a protective home or a corrective institution, as the case may be, and shall include any person appointed as such by the State Government to discharge the functions of a Superintendent under these rules."
38. Rule 13 of the Rules of 1993 provides that each protective home or corrective institution shall be headed by a whole time Superintendent, preferably a woman, who is professionally trained in social work or has a wide experience in women's welfare. Rule 14 contains duties of Superintendent. By virtue of Clause (I) of Rule 14 the Superintendent shall be in charge of general supervision of the protection home. Rule 38 provides for discharge of inmates of protective home or corrective institution and is reproduced hereinafter:-
"38. Discharge of inmates of protective home or corrective institution. - (1) On a report from the Superintendent the Chief Inspector may order any person detained in a protective home or corrective institution, whose behaviour is found to be good and who is unlikely to commit any offence under the Act, to be discharged without or with conditions as he deems fit to impose and grant him a written licence of such discharge in Form-X:
Provided that no such person shall be discharged on licence unless he has resided in the corrective institution for a period not less than six months or in a protective home for not less than one-third of his detention, as the case may be.
(2) The Superintendent shall at the end of each month prepare a statement of inmates who have to be discharged in the subsequent month and read out that statement to the inmates. All such cases in which the inmates have no safe place to go back shall be reported by the Superintendent to Chief Inspector at least one month before the date of third charge from the home or institution for such rehabilitative placement as the Chief Inspector deems appropriate.
(3) On the day of the discharge, the inmate's state of health shall be recorded by the Superintendent in the Inmate's Register he shall compare the entries in the warrant of Committal with those in the Register and shall satisfy himself that they agree and the term of the inmate has been duly served. He shall then sign the endorsement for discharge on the warrant, certifying the due expiry of the term. The belongings of the inmates shall be handed over to him and the details recorded in the appropriate column in the Inmate Register. The inmate shall be given food for the day before he is discharged. The inmate shall, if necessary, be provided with suitable clothing.
(4) Every discharged inmate whose destination is on or near a Railway Line, shall be supplied with a railway ticket of the lowest class. Payment of the fare shall be made by railway warrant where the cost of journey exceeds rupees fifty. In other cases, payment shall be made in cash. When a journey is to be made by boat/bus or steamer, the inmate shall be provided with passage or passage money to the halting place nearest to his destination at the lowest rate. Every inmate who has to proceed to a destination of more than 8 kilometres by road or has to perform more than three hours journey by rail or any other mode of conveyance shall on discharge be given subsistence allowance at the rate of rupees five if the journey is to be completed on the following morning and rupees ten per day otherwise.
(5) In case where the parent, relative or guardian of the discharged inmate fails to make his own arrangement to take charge of the inmate at the protective home or corrective institution, the inmate on discharge shall be sent under the charge of an official of the home or institution who shall be responsible for the care and safety of the inmate until he is handed over to such parent, relative or guardian. The official shall be granted travelling allowance for the to and for journeys, the rates admissible under the rules of the State Government.
(6) The State Government may at any time order suitable inmate of the protective homes or corrective institutions to be admitted into institutions established under the After Care programmes of the State Government.
(7) A disposal register in Form XI shall be kept in every protective home or corrective institution in which full particulars shall be entered of the manner in which every inmate is disposed of on discharge and of his after carers. Every effort shall be made by the Superintendent to keep in touch with the inmates for at least five years after their discharge.
(8) An annual return in Form XII shall be made by the Superintendent to the Chief Inspector. The remarks made by the Board of Visitors from time to time during the year to which the return relates shall also be communicated to the Chief Inspector with the return."
39. The court below has taken note of Rule 38 to opine that the Superintendent had no jurisdiction, in law, to direct release of an inmate even if the period of detainment had come to an end and that such power could be exercised either by the Chief Inspector or by the Magistrate, who placed these inmates in the custody of Superintendent by virtue of Section 17(4) of the Act of 1956.
40. It is in the context of above statutory scheme and in light of the directions issued by the Supreme Court for running of the Government Protection Home (Women) at Agra that the action of accused appellant needs to be examined on the basis of evidence led by the prosecution and the defence.
41. The records clearly reveal that the State authorities on the basis of information received with regard to running of prostitution in a brothel at Meerganj, Allahabad raided the premises and rescued 67 females and 37 children. These rescued victims were produced before the SDM Sadar, Allahabad on 21st May, 2016. The order of Magistrate records that 67 inmates alongwith 37 children are to be lodged in the Government Protection Home (Women), Agra for a period of one year/further orders and in case if any application for release is moved during this period then appropriate orders would be passed on the basis of materials/evidence, in accordance with law. The term of detainment of these inmates by virtue of order dated 21st May, 2016 was one year. This period of one year was to expire on 20th May, 2017. It is the admitted case of prosecution that 43 inmates have been released by the accused appellant after expiry of one year term of detainment on 20th May, 2017. The release of 43 inmates is between 21st May, 2017 to 23rd of May, 2017.
42. It would be worth noticing, at this stage, that out of 67 adult females lodged in the protection home, 22 inmates were released under the directions of the concerned court at Allahabad. The order of the concerned court was challenged before the Supreme Court in Special Leave to Appeal (Crl.) No.3324 of 2017 and vide orders passed on 13.2.2017 and 21.4.2017, these inmates were directed to be retrieved and lodged again in the protective home. There is no allegation that any of these twenty two inmates have been released by the accused appellant and, therefore, legality of release of twenty two inmates is not to be commented upon as the same is not the subject matter of this appeal. The scope of the present appeal is confined to the release of forty three inmates alongwith their eight children between 21.5.2017 to 23.5.2017.
43. Broadly speaking two issues arise for consideration in the present appeal. The first is whether the inmates were released by the accused appellant prior to the expiry of term of their detainment? The second aspect of the first issue would be whether the order dated 18.5.2017, extending the term of detainment by two years, was served upon the accused appellant prior to release of these inmates. The second issue would be whether the accused appellant in her capacity as the Superintendent of Government Protection Home (Women) was competent to release the inmates or she had no jurisdiction to do so?
44. The evidence on record has already been noticed above and is now examined for the purpose of determination of issues framed in this appeal.
45. Admittedly, the initial lodgment of inmates was for a period of one year/further orders which was to expire on 20th May, 2017. The accused appellant is not charged of releasing any of these inmates within the period of one year. She is charged for releasing the inmates within the extended period of detainment ordered by the concerned magistrate on 18.5.2017. The parties are at issue with regard to service/communication of the order dated 18.5.2017 prior to release of the inmates between 21.5.2017 to 23.5.2017.
46. It is the prosecution case that the term of initial detainment of inmates was extended by the concerned magistrate on 18.5.2017. The Magistrate who has passed the order dated 18.5.2017 has not been produced in evidence. The original order of 18.5.2017 has also not been produced before the court below. Its certified copy has been exhibited as Ex.-19. This order is allegedly sent by e-mail, fax, whatsapp and by registered post to the Superintendent. There is, however, a specific denial of the appellant regarding receiving of this order prior to release of the inmates. The accused appellant has herself appeared in the witness box and has admitted that the order dated 18.5.2017 was received by her on 24.5.2017 at 2.15 PM. Her specific case is that by then she had released all the forty three inmates as they had completed the period of detainment and their continued detention would have been contrary to law.
47. The first document with regard to dispatch of the order dated 18.5.2017 is a photocopy of the fax receipt marked as Ex.Ka.14. This document does not show the details of the dispatcher or the number from it is dispatched and it merely shows that a fax message has been sent to District Magistrate, Agra. What are the contents of this fax message are not shown. There is nothing on record to show that this document was actually sent to the Superintendent, Government Protection Home (Women), Agra. This document otherwise is a photocopy with neither its original produced, nor any explanation has been furnished with regard to non-availability/absence of the original document. The prosecution otherwise has not produced any evidence to show that there existed facility of fax in the office of the Superintendent of Government Protection Home (Women). There is also no evidence to show that the office of District Magistrate, Agra had, in turn, communicated the alleged fax message to the Superintendent of the Government Protection Home (Women). DW-1 in her statement has denied existence of any facility of fax in her office and has denied the suggestion given to her about receipt of order dated 18.5.2017 in her office by fax.
48. The responsibility to prove dispatch of order dated 18.5.2017, by fax, from the office of Sub Divisional Magistrate, Sadar, Allahabad to the Superintendent, Government Protection Home (Women), Agra was of the prosecution. We have minutely examined the evidence on record of this appeal including the lower court record and we have no hesitation in concluding that the alleged order dated 18.5.2017 is not shown to have been dispatched to the office of the Superintendent, Government Protection Home (Women), Agra by fax and its receiving by fax is not proved. The prosecution has thus, failed to establish the dispatch of the order dated 18.5.2017 to the office of accused appellant by fax.
49. The next document on record is the photocopy of certain letters dispatched by speed post and the photocopy of such receipts have been exhibited as Ex.Ka. 15. The photocopy of the dispatch shows that some communication has been sent to the Superintendent of Government Protection Home (Women), Agra by the office of Sub Divisional Magistrate, Allahabad on 20.5.2017. The original of this dispatch has not been exhibited and a specific objection is taken by the defence to the admissibility of such evidence. Even if we treat that some communication was sent by registered speed post on 20.5.2017, it would have to be shown by the prosecution that the order dated 18.5.2017 was actually received in the office of Superintendent prior to 24.5.2017. As a matter of fact, the accused appellant has admitted that she received the order dated 18.5.2017 on 24.5.2017 at 2.15 pm. The prosecution, therefore, was required to show that this order was actually received in the office of Superintendent prior to 24.5.2017 at 2.15 pm. The document (Ex.Ka.15), therefore, cannot be treated as a proof of receipt of the order dated 18.5.2017 by the Superintendent prior to 24.5.2017 at 2.15 pm. This document, therefore, cannot help the prosecution case, even if we overlook the objection with regard to its admissibility on the ground that it is a photocopy and the contents of the dispatched communication remains un-ascertained.
50. Next document produced by the prosecution is the photocopy of the e-mail sent from to [email protected]. The dispatcher as per this e-mail post is which is not shown to be the e-mail address of the Sub Divisional Magistrate, Sadar, Allahabad. There is no evidence otherwise to show that the Superintendent, Government Women Protection Home, Agra had any facility of e-mail at her office. The specific statement of DW-1 (accused appellant) is that she had no facility of e-mail in her office. The photocopy of e-mail receipt evidencing dispatch of e-mail on 19.5.2017 at 8.54 pm to [email protected], therefore, would not be sufficient proof of intimation of the order dated 18.5.2017 to the Superintendent.
51. The next prosecution document is the certified copy of dispatch register in which a communication is shown to have been sent to the Government Women Protection Home, Agra. How this letter has been served or even dispatched is not clear. The photocopy of this document would, therefore, not be a proof regarding service of order dated 18.5.2017 in the office of Superintendent prior to 24.5.2017.
52. The other document of prosecution is Ex.Ka.18 on which heavy reliance has been placed by the prosecution. This document is a certified photocopy of the whatsapp communication sent by a Lekhpal working in the office of Tehsil Sadar at Allahabad namely Sanjiv Khare from his Mobile No. 9450509758 to the Superintendent on her Mobile No. 9457020485. This document allegedly has been seen by the receiver at 4.56 pm on 20.5.2017.
53. So far as the dispatch of order dated 18.5.2017 by whatsapp is concerned, the sender of this communication is one Sanjiv Khare, who has not been produced in evidence. The sender of this whatsapp number is not of the Sub Divisional Magistrate, Sadar, Allahabad. The receiver of this whatsapp is Mobile No. 9457020485 which admittedly does not belong to the accused appellant. Mobile no. 9457020485 is registered in the name of the husband of the accused appellant, namely, Rakesh Kumar son of Ram Dulare, who lives at Etawah and has emphatically stated that he had an ordinary sim on which there was no facility of whatsapp. He has denied the suggestion that this SIM number was with the accused appellant or that she was utilizing it.
54. The evidence on record regarding receiving of letter dated 18.5.2017 is the admission of the accused appellant that she received it on 24.5.2017 at 2.15 pm. There is no legal evidence to show that this communication was received by the Superintendent prior to 24.5.2017 at 2.15 pm. Though it is not specifically so stated but it appears that the order dated 18.5.2017 was actually received in the office of Superintendent on 24.5.2017 by speed post.
55. So far as the dispatch of order dated 18.5.2017 by e-mail, whatsapp or fax is concerned, the dispatch in all three modes would amount to electronic record and evidence of such kind would be admissible only if it is backed by a certificate issued in terms of Section 65-B(4) of the Indian Evidence Act. Section 65-B(4) of the Evidence Act reads as under:-
"65-B(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,--
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it."
56. The provision contained in Section 65-B(4) of the Evidence Act has been examined by the Supreme Court in Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 and again in Ravindra Singh @ Kaku Vs. State of Punjab, (2022) 7 SCC 581 to hold as under:-
"21. Lastly, this appeal also raised an important substantive question of law that whether the call records produced by the prosecution would be admissible under Sections 65-A and 65-B of the Evidence Act, given the fact that the requirement of certification of electronic evidence has not been complied with as contemplated under the Act. The uncertainty of whether Anvar P.V. v. P.K. Basheer [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 occupies the filed in this area of law or whether Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801 lays down the correct law in this regard has now been conclusively settled by this Court by a judgment dated 14-7-2020 in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1 wherein the Court has held that:
"61. We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V.[Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473], and incorrectly "clarified" in Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801. Oral evidence in the place of such certificate cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor, (1875) LR 1 Ch D 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65-B(4) of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65-B(4) otiose.
Anvar P.V. (supra), as clarified by us hereinabove, is the law declared by this Court on Section 65-B of the Evidence Act. The judgment in Tomaso Bruno [Tomaso Bruno v. State of U.P., (2015) 7 SCC 178], being per incuriam, does not lay down the law correctly. Also, the judgment in Shafhi Mohammad (supra) and the judgment dated 3-4-2018 reported as Shafhi Mohammad (supra) , do not lay down the law correctly and are therefore overruled.
The clarification referred to above is that the required certificate under Section 65-B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer" happens to be a part of a "computer system" or "computer network" and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65-B(1), together with the requisite certificate under Section 65-B(4).
22. In light of the above, the electronic evidence produced before the High Court should have been in accordance with the statute and should have complied with the certification requirement, for it to be admissible in the court of law. As rightly stated above, oral evidence in the place of such certificate, as is the case in the present matter, cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law."
57. The argument of Sri G.S. Chaturvedi, Senior Advocate that no certificate in terms of Section 65-B(4) of the Evidence Act has been produced during the trial by the prosecution is not disputed by learned AGA or the counsel appearing for PW-2.
58. We have examined the original records also and we do not find existence of any such certificate under Section 65-B(4) on record. In its absence the electronic evidence produced by the prosecution in the form of dispatch of whatsapp, e-mail or fax would clearly be inadmissible. Even otherwise, we find that the State has adopted a callous approach in proving the dispatch of the order dated 18.5.2017, inasmuch as, neither the SDM himself, nor his Stenographer or any other employee responsible for dispatch of such communication has been produced in evidence. The original records of the office of SDM have also not been produced or exhibited. In the absence of evidence to show non-availability of original records, we are not persuaded to entertain the secondary evidence sought to be adduced by the prosecution. We may also note that even during the course of investigation none of the Investigating Officers met the SDM Sadar, Allahabad, nor his statement was recorded under Section 161 Cr.P.C. No attempt was made to ascertain the details of official fax number, e-mail number, whatsapp number of the office of SDM Sadar, Allahabad. PW-9, was the investigating officer who submitted the charge-sheet has stated categorically in his cross examination that the whatsapp number of SDM Sadar Allahabad or the whatsapp number, fax number of the accused appellant is not on record. The following extract of his statement is reproduced:-
"पूरी विवेचना में SDM सदर इलाहाबाद का कोई भी ब्यान हस्व दफा 161Crpc दर्ज नहीं है। आरोप पत्र में भी उन्हे दस्तखत नही बनाया गया। सम्पूर्ण विवेचना में SDM सदर इलाहाबाद का कोई भी WhatsApp नम्बर बनाया फोन नम्बर तथा गीता राकेश का सरकारी WhatsApp नम्बर, फैक्स नम्बर फोन नम्बर दर्ज नही है।"
59. The other Investigating Officer namely B.S. Tyagi has also admitted that he never met the SDM Sadar Allahabad. His statement with regard to ascertainment of phone number is reproduced hereinafter:-
"यह सही है कि SDMसदर इलाहाबाद से व्यक्तिगत मेरी मुलाकात नही हुई। और अपने 161 CrPC का ब्यान भी मेरे CD में दर्ज नही किये। क्योंकि मेरी उनसे कभी व्यक्तिगत मुलाकात नही हुई। चार्जशीट मेरे द्वारा दाखिल नही की गई है। SDMइलाहाबाद का फैक्स नम्बर और whatsApp नम्बर email ID दर्ज कराई थी जो मैने केस डायरी में दिनांक 11/6/17 को उमाशंकर के ब्यान में दर्ज की है। और उसी में SDM सदर के कार्यालय में तैनात संजीव खरे के मोबाइल नम्बर 9450509758 के द्वारा श्री मती गीता राकेश के मोबाइल नम्बर 9457020485 पर सूचना देना अंकित कराया था। समय 4.56PM पर 20 मई 2017 को फैक्स नम्बर CD मे दर्ज नही है। मैने स्वंय इन नम्बरो की जाँच नही की ये नम्बर सही है या नही। नही थे ये किसी जाँच का उल्लेख C.D. में किया है। संजीव खरे से भी मेरी व्यक्तिगत मुलाकात नही हुई।"
He has further stated as under:-
"गीता राकेश का Email तथा फैक्स नम्बर C.D. में दर्ज नही है।"
60. The evidence on record, therefore, clearly shows that the prosecution has failed to establish that the order dated 18.5.2017 was served upon the accused appellant or was received in the office of Superintendent, Government Women Protection Home, Agra prior to 24.5.2017 by when the inmates had been released.
61. At this juncture, we may also note that the accused appellant has also been convicted for offences under Section 16 read with 17 of the POCSO Act and she has been sentenced to life imprisonment for it. There is no evidence led by the prosecution to show that any of the inmates, released, was a minor. The 43 inmates were released alongwith their eight children. The released inmates were natural guardian of these eight minor children. All the forty three inmates otherwise were major and no evidence has been led by the prosecution to show that they were minor. PW-10, who was the Investigating Officer of the case has clearly admitted that all the inmates, released by the accused appellant, were major. Categorical statement in that regard is extracted hereinafter:-
"संवासिनियाँ जो छोड़ी गई थी वो सभी बालिग है।"
62. The other Investigating Officer has also admitted that there is no material available on record to show that any of the released inmate was a minor. We have been taken through the evidence of all other witnesses and we find that none of the witnesses have even claimed that any of the released inmates was a minor. Once that be so, we are at a loss to understand as to how the offence under Section 16/17 of the POCSO Act could have been proved against the accused appellant.
63. This takes us to the second question, which is, whether the accused appellant could have released the forty three inmates alongwith their eight children on her own or it required approval of some other officer to release them.
64. Before proceeding to examine the evidence with regard to the second issue formulated above, we would like to refer to the charges framed against the accused appellant in the present trial. There are eight charges levelled against the accused appellant. The charges have already been extracted above. The fourth charge is that the inmates were lodged in the Government Women Protection Home, Agra under the guardianship of the Sub Divisional Magistrate, Sadar, Allahabad and without his permission they could not have been released. This amounted to offence under Section 363 IPC.
65. The court below doubted the jurisdiction of Superintendent to release the inmates in view of Rule 38 of the Rules of 1993, which are already extracted above. The counsels opposing the appeal have also laid much emphasis upon it. Though we propose to examine this aspect, but we may indicate that an accused can be tried only for the charges specifically framed against her/him. The accused would have the opportunity to put-forth its defence only in the context of the charge levelled. There is no charge framed against the accused appellant with regard to non-observance of Rule 38, which vests the jurisdiction for discharge of inmate in the Chief Inspector. We are, therefore, doubtful whether the accused appellant could be punished for violation of Rule 38 when no such charge has been levelled against her. Violation of Rule 38 is also not an offence under the Act or the Rules of 1993.
66. It is settled that an accused cannot be punished without being charged for the offence at the trial. We are, therefore, of the considered opinion that Rule 38 could not be relied upon nor a charge with regard to its violation could be attributed to the accused appellant. This is more so when the statute/law does not hold violation of Rule 38 to be a substantive offence. The accused appellant is only charged of exceeding her jurisdiction in releasing the inmates as authority for release vested with the Sub Divisional Magistrate and to such extent alone the accused appellant could be tried.
67. The order of Sub Divisional Magistrate dated 21.5.2016 directed for detainment of inmates in the protection home for a period of one year/further orders. We have already held that the further order dated 18.5.2017 was not communicated to the accused appellant prior to release of inmates. The only order on record is of 21.5.2016, as per which, period of detainment of inmate was for one year. This period admittedly expired on 20.5.2017. None of the inmates was released by the accused appellant till 20.5.2017. In the circumstances it needs to be examined whether the inmates could be detained in the protection home even after expiry of the term of their detainment i.e. 20.5.2017?
68. On the above issue, we find that there is a specific order of the Supreme Court in Dr. Upendra Baxi and others (II) (supra), which has already been extracted above. The Supreme Court has clearly directed the Superintendent of the Protection Home to take care that no women or girl is detained without due authority and process of law. The District Judge, Agra was also directed to carry out monthly inspection of the protection home and verify during every visit that no woman or girl is detained except under the authority of law and if he finds that any of them is detained without any authority of law, he shall take steps to see that she is released and repatriated to her parents or husband or other proper authority. The accused appellant (DW-1) has clearly stated in her testimony that she wrote to the District Judge, Agra for his guidance in the matter and the District Judge, Agra directed her to act in accordance with the order passed by the SDM Sadar Allahabad. The statement of DW-1 in this regard is reproduced hereinafter:-
^^ek0 ftyk tt ds 4-5-17 ,oa 20-5-17 nksuks i=ksa esa ihfM+rk dh vkokflr vof/k 20-5-17 dks gh lekIr gksuk crk;k gS rRdze es SDM lnj bykgkckn ds vkns'k rRdky vuqikyu vkns'k eq>s fn;sA nksuks i= esa vU; lcwr ds lkFk nkf[ky dj jgh gwWaA^^
69. The above statement of accused appellant has not been challenged by the prosecution, nor such statement is shown to be false or incorrect. The Superintendent otherwise is the Principal Officer (Incharge) of Protection Home and the charge of general supervision of protection home vests in the Superintendent. It would thus be the responsibility of the Superintendent to ensure that no person is detained in a protection home without the authority of law. Her decision to release the inmates after term of detainment of inmates had come to an end, therefore, cannot be frowned upon.
70. Rule 38, which has been referred to by the court below and has been pressed by the respondents apparently is in respect of discharge of inmates of a protection home and not release upon expiry of detainment period. This power apparently regulates a distinct exigency where the inmate is to be discharged from a protection home on account of good behaviour and is not likely to commit any offence during the subsistence of the detainment period. The exigency which attracts Rule 38 does not arise in the facts of the present case. The inmates in the present case had completed the term of their detainment and as they were otherwise major their detainment beyond 20.5.2017 would not have been lawful. In her capacity as the Principal Officer of the Protection Home, it was within the competence of the Superintendent to have released the inmates once the term of their detainment had come to an end. The officer otherwise had taken due precaution of writing to the District Judge, Agra and the limited guidance received from the District Judge was to act in terms of the order of the SDM. The decision taken by the accused appellant to release the inmates upon expiry of their detainment period cannot thus be said to be illegal.
71. Moreover, the release of inmates upon expiry of the detainment period would not amount to any offence as per the provisions of the Act of 1956. The accused appellant however has been charged of offence under Section 370(3), 370(5), 370(7), 363, 188, 120B IPC read with Section 9 of the Act of 1956 and Section 16/17 of the POCSO Act. Section 370 IPC provides for trafficking of a person. Section 370 IPC is reproduced hereinafter:-
"370. Trafficking of person. - (1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, ( c) harbours, (d) transfers, or (e) receives, a person or persons, by--
First. - using threats, or Secondly. - using force, or any other form of coercion, or Thirdly. - by abduction, or Fourthly. - by practising fraud, or deception, or Fifthly. - by abuse of power, or Sixthly. - by 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, harboured, transferred or received, commits the offence of trafficking.
Explanation 1.- The expression "exploitation" shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.
Explanation 2.- The consent of the victim is immaterial in determination of the offence of trafficking.
(2) Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine.
(3) Where the offence involves the trafficking1 of more than one person, 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.
(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.
(5) Where the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than fourteen 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 person's natural life, and shall also be liable to fine.
(7) When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine."
72. Sub-section (1) of Section provides that whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by--
First.--using threats, or Secondly.--using force, or any other form of coercion, or Thirdly.--by abduction, or Fourthly.--by practising fraud, or deception, or Fifthly.--by abuse of power, or Sixthly.-- by 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, harboured, transferred or received, commits the offence of trafficking.
73. Sub-Sections (3)(5) & (7) of Section 370 IPC deals with specific exigencies arising in the context of an offence contained in Section 370(1) IPC.
74. In the facts of the present case, we find that there is no allegation or evidence against the accused appellant that she has either recruited or transported or harboured or transferred or received a person or persons for exploitation by using threats or coercion or abduction or by practising fraud or deception or abuse of power or by inducement, etc. The only allegation against the appellant is of unlawfully releasing the inmates from the protection home in derogation of the order passed by Magistrate on 18.05.2017. There is no evidence on record to show that release of inmates was for the purpose of their exploitation, nor they are recruited; transported; harboured; transferred or received for exploitation. At best there is an apprehension that the released inmates may be forced again into immoral trafficking. There is otherwise no evidence that any of the released inmate was again forced into trafficking at the instance of the accused appellant. The apprehension that these inmates may again be involved in human trafficking cannot be a substitute for evidence to be led by the prosecution for establishing charge under Section 370 IPC. In the absence of evidence of trafficking against the accused appellant, she could not have been convicted and sentenced under Section 370(3)(5)(7) IPC. The court below has completely overlooked this aspect of the matter.
75. So far as charge under Section 363 IPC is concerned, none of the inmates are shown to be a minor and the period of their detainment had come to an end. Necessary ingredients to establish offence under Section 363 IPC are completely missing in the facts of the case. The inmates are not shown to be removed or kidnapped from lawful guardianship of someone else.
76. So far as the offence under Section 188 IPC is concerned, we find that there was no disobedience to any order duly promulgated by public servant. We have already held that the subsequent order of Sub Divisional Magistrate, dated 18.5.2017 was not served upon the accused appellant prior to the release of the inmates and in the absence of any complaint filed in that regard the conviction and sentence of the accused appellant under Section 188 IPC would also be impermissible in law.
77. So far as the offence under Section 120B IPC is concerned, the criminal conspiracy requires two or more persons to agreed to do or cause to be done an illegal act or an act by illegal means. One person alone cannot commit criminal conspiracy. Since the offending act is attributed to the accused appellant alone, the charge under Section 120B IPC cannot be established when it is not proved that any criminal conspiracy has been hatched to commit an offence punishable for a term of two years or more.
78. So far as charge under Section 9 of the Act of 1956 is concerned, it contemplates seduction of a person in custody. The provision contemplates that any person having the custody of another causes or aids or abets the seduction for prostitution of that person he/she shall be punished for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years. In the facts of the present case there is neither any allegation nor any evidence that any person in care or charge of the accused appellant has been seduced for prostitution and, therefore, the charge under Section 9 of the Act also cannot be made out.
79. The last charge against the accused appellant is of committing offence under Section 16/17 of the POCSO Act. We have already noticed that none of the inmates released from the Protection Home was a minor. Only eight children were released alongwith forty three inmates who were minor children of these inmates and, therefore, the released inmates were the legal and lawful guardians of these children. Once these inmates were being released from the protection home on completion of their detainment period it was necessary that their dependent children be also released with their mothers. The positive evidence of prosecution is that all inmates were major. In such circumstances, we fail to understand as to how the accused appellant could be punished for the offence under Section 16/17 of the POCSO Act.
80. Upon evaluation of the evidence led on record and for the discussions held above, we find that the court below has completely misdirected itself in holding the accused appellant guilty for the offence committed under the various sections of IPC; Act of 1956 and the POCSO Act. The only action on part of the accused appellant is of releasing the inmates after completion of their period of detainment at the protection home. Such act by no stretch of imagination could be construed as an act amounting to offence on part of the accused appellant.
81. Before parting, we must indicate our displeasure at the manner in which the officers of State have handled the concerns of rehabilitation of the forty three inmates who were rescued and then placed in the custody of the Superintendent of Government Women Protection Home, Agra as also the manner in which evidence is led at the stage of trial in this case. The detainment of inmates was for a period of one year and none of the State Authorities apparently oversaw the steps to be taken for their rehabilitation over a period of one year. There is nothing on record to show that any concrete steps towards rehabilitation of these inmates were taken. These inmates were not punished for any offence and the object of their detainment was merely to ensure their rehabilitation. The authorities having kept these inmates in the custody of Superintendent apparently lost track of them. PW-1, who is the official of the department of Women Development has admitted that he never visited Agra even once to look after the rehabilitation of forty three inmates in question. It appears that after a concern was raised by PW-2, the authorities suddenly woke up from their deep slumber and washed their hands by merely placing all responsibility upon the accused appellant. In our opinion the department of Women Development and the authorities under the Act of 1956 ought to have monitored the exercise to be undertaken for rehabilitation of these rescued inmates and some scheme/plans ought to have been formulated so as to ensure that these inmates are not forced again into immoral trafficking.
Even at the stage of trial none from the office of concerned magistrate was produced nor the original records were exhibited. This shows callousness on part of the responsible officers in dealing with the plight of rescued workers. In the circumstances of the present case, we deem it appropriate to observe that the authorities entrusted with the task of rehabilitation of rescued sex workers must be made more responsive and appropriate schemes be formulated for protection and rehabilitation of the rescued workers. We hope and trust that the authorities of the State would give due attention to such serious concerns of well being of rescued workers so that the object of the Act of 1956 are fulfilled.
82. For the deliberations and discussions held above, this appeal succeeds and is allowed. The judgment and order dated 6.10.2018, passed by the Special Judge (POCSO Act)/VIII Additional Sessions Judge, Agra in Special Trial No. 1848 of 2017, is set-aside. The accused appellant, who is in jail since 1.6.2017, shall be set to liberty, forthwith, unless she is wanted in any other case, subject to compliance of Section 437A Cr.P.C.
Order Date:- 4.1.2023
Ranjeet Sahu
(Shiv Shanker Prasad, J.) (Ashwani Kumar Mishra, J.)