Document Fragment View

Matching Fragments

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.

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.

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--

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.