Bombay High Court
Munnibai Maksud Pathan vs The State Of Maharashtra Thr Pso Ps Ajni, ... on 17 November, 2025
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APPA) NO.72/2025
IN
CRIMINAL APPEAL NO. 43/2025
Munnibai Maksud Pathan Vs. The State of Maharashtra, through
P.S.O. Ajni Police Station, Nagpur
Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and
Registrar's orders
Mr. R.M. Daga, Advocate for Appellant
Mr. S.S. Hulke, APP for Respondent No.1
Mr. A.A. Krishnan, Adv. (Appointed) for Respondent no.2
CORAM: NIVEDITA P. MEHTA, J.
DATED : 17th NOVEMBER, 2025
1. The applicant has filed the present appeal
before this Court, challenging the judgment and order
dated 25.11.2024, passed in Special Criminal
(POCSO) Case No. 492/2021, by the learned Extra
Joint District Judge and Additional Sessions Judge
[Special Judge, POCSO Court], Nagpur.
2. The applicant stands convicted for the following
offences:
Section 376(3) of the Indian Penal Code (IPC):
sentenced to undergo rigorous imprisonment for 20
years and to pay a fine of ₹7,000, in default to suffer
further rigorous imprisonment for 1 year;
Section 4 of the Protection of Children from
Sexual Offences Act, 2012 (POCSO Act): sentenced to
undergo rigorous imprisonment for 20 years and to
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pay a fine of ₹7,000, in default to suffer further
rigorous imprisonment for 1 year;
Section 3 of the Immoral Traffic (Prevention)
Act, 1956 (the Act of 1956): sentenced to undergo
rigorous imprisonment for 1 year and to pay a fine of
₹2,000, in default to suffer further rigorous
imprisonment for 2 months;
Section 4 of the Act of 1956: sentenced to
undergo rigorous imprisonment for 1 year and to pay
a fine of ₹2,000, in default to suffer further rigorous
imprisonment for 2 months;
Section 5 of the Act of 1956: sentenced to
undergo rigorous imprisonment for 3 years and to pay
a fine of ₹3,000, in default to suffer further rigorous
imprisonment for 3 months; Section 7 of the Act of
1956: sentenced to undergo rigorous imprisonment
for 7 years and to pay a fine of ₹7,000, in default to
suffer further rigorous imprisonment for 4 months.
3. The learned counsel for the applicant submits
that the conviction recorded against the applicant for
the offences punishable under Section 376(3) of the
IPC and Section 4 of the Act of 1956 is unsustainable,
as the said provisions are not attracted to the facts of
the present case. He further contends that the
remaining provisions invoked against the applicant
prescribe comparatively lesser sentences. It is also
urged that the learned Trial Court erred in invoking
Section 7 of the Immoral trafficking Act of 1956, as
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the statutory ingredients of the said provision have
not been fulfilled. The counsel has drawn the
attention of this Court to Section 7, which reads as
under:
"7. Prostitution in or in the vicinity of public
places.--[(1) Any 1 [person], who carries on
prostitution and the person with whom such
prostitution is carried on, in any premises,--
(a) which are within the area or areas,
notified under sub-section (3), or
(b) which are within a distance of two
hundred metres of any place of public
religious worship, educational institution,
hostel, hospital, nursing home or such other
public place of any kind as may be notified in
this behalf by the Commissioner of Police or
magistrate in the manner prescribed, shall be
punishable with imprisonment for a term
which may extend to three months.]
[(1A) Where an offence committed under
sub-section (1) is in respect of a child or
minor, the person committing the offence
shall be punishable with imprisonment of
either description 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 and shall also be liable to fine:
Provided that the court may, for adequate
and special reasons to be mentioned in the
judgment, impose a sentence of
imprisonment for a term of less than seven
years.]
(2) Any person who--
(a) being the keeper of any public place
knowingly permits prostitutes for purposes of
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their trade to resort to or remain in such
place; or
(b) being the tenant, lessee, occupier or
person in charge of any premises referred to
in subsection (1) knowingly permits the same
or any part thereof to be used for
prostitution; or
(c) being the owner, lessor or landlord, of
any premises referred to in sub-section (1),
or the agent of such owner, lessor or
landlord, lets the same or any part thereof
with the knowledge that the same or any part
thereof may be used for prostitution, or is
wilfully a party to such use, shall be
punishable on first conviction with
imprisonment for a term which may extend
to three months, or with fine which may
extend to two hundred rupees, or with both,
and in the event of a second or subsequent
conviction with imprisonment for a term
which may extend to six months and also
with fine 2 [which may extend to two
hundred rupees, and if the public place or
premises happen to be a hotel, the licence for
carrying on the business of such hotel under
any law for the time being in force shall also
be liable to be suspended for a period of not
less than three months but which may extend
to one year:
Provided that if an offence committed under
this sub-section is in respect of a child or
minor in a hotel, such licence shall also be
liable to be cancelled.
Explanation.--For the purposes of this sub-
section, "hotel" shall have the meaning an in
clause (6) of section 2 of the Hotel-Receipts
Tax Act, 1980 (54 of 1980).]
[(3) The State Government may, having
regard to the kinds of persons frequenting
any area or areas in the State, the nature and
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the density of population therein and other
relevant considerations, by notification in the
Official Gazette, direct that prostitution shall
not be carried on in such area or areas as
may be specified in the notification.
(4) Where a notification is issued under sub-
section (3) in respect of any area or areas,
the State Government shall define the limits
of such area or areas in the notification with
reasonable certainty.
(5) No such notification shall be issued so as
to have effect from a date earlier than the
expiry of a period of ninety days after the
date on which it is issued.]"
4. According to the learned counsel, the
area in question is required to be notified
under sub-section (3) of Section 7, and in the
absence of any such statutory Notification,
invocation of the said provision is prima facie
unsustainable. He further submits that a
perusal of the evidence of the victim (PW-2)
demonstrates, at least prima facie, that the
applicant did not compel the victim into
prostitution. It is also submitted that the
applicant was on bail throughout the trial
and did not misuse the liberty granted to her.
In these circumstances, the learned counsel
prays for suspension of the sentence imposed
upon the applicant.
5. Per contra, the learned Additional
Government Pleader opposes the application
and submits that the applicant was engaged
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in running a brothel and has forced the
victim girl into prostitution. He further points
out that the applicant has one prior criminal
antecedent involving similar allegations
under Sections 3, 4 and 5 of the Act of 1956.
He therefore contends that if the applicant is
released, there exists a likelihood of her
indulging in similar activities, and thus prays
for rejection of the application for suspension
of sentence.
6. Upon considering the rival submissions
and examining the record, this Court finds
that the testimony of the victim, prima facie,
does not indicate that she was coerced into
prostitution by the applicant. Having regard
to the nature of the sentence imposed, the
likelihood of the appeal being heard in the
near future, and the law laid down by the
Hon'ble Supreme Court in Jamnalal v. State
of Rajasthan & Anr., SLP (Crl.) No. 69/2025,
this Court deems it appropriate to reproduce
the relevant principles governing suspension
of sentence under Section 389 CrPC.
Paragraph 10 of the judgment emphasizes
that the appellate Court must form a prima
facie view regarding the sustainability of the
conviction. The Court has observed:
"10. One would expected the High Court
hearing an application under Section 389 of
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Cr.P.C. for suspension of sentence to examine
prima facie there was anything palpable on the
record to indicate if the accused had a fair
chance of overturning the conviction in
Omprakash Sahni v. Jai Shankar Chaudhary
and Another, this Court had the following to
say on the scope of Section 389 of the Cr.P.C.
"23. The principle underlying the theory of
criminal jurisprudence in our country is that an
accused is presumed to be innocent till he is
held guilty by a Court of competent
jurisdiction. Once the accused is held guilty, the
presumption of innocence gets erased. In the
same manner, if the accused is acquitted, then
the presumption of innocence gets further
fortified.
24. From perusal of Section 389 CrPC, it is
evident that save and except the mater falling
under the category of sub-section (3) neither
any specific principle of law is laid down nor
any criteria has been fixed for consideration of
the prayer of the convict and further, having a
judgment of conviction erasing the
presumption leaning in favour of the accused
regarding innocence till contrary recorded by
the Court of competent jurisdiction, and in the
aforesaid background, there happens to be a
fine distinction between the prayer for bail at
the pre-conviction as well as the post-
conviction stage viz. Sections 437, 438, 439
and 389(1) CrPC.
33. Bearing in mind the aforesaid principles
of law, the endeavour on the part of the Court,
therefore, should be to see as to whether the
case presented by the prosecution and accepted
by the trial Court can be said to be a case in
which, ultimately the convict stands for fair
chances of acquittal. If the answer to the
abovesaid question is to be in the affirmative,
as a necessary corollary, we shall have to say
that, if ultimately the convict appears to be
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entitled to have an acquittal at the hands of
this Court, he should not be kept behind the
bars for a pretty long time till the conclusion of
the appeal, which usually takes very long for
decision and disposal. However while
undertaking the exercise to ascertain whether
the convict has fair chances of acquittal, what
is to be looked into is something palpable. To
put it in other words, something which is very
apparent or gross on the face of the record, on
the basis of which, the court can arrive at a
prima facie satisfaction that the conviction may
not be sustainable. The appellate court should
not reappreciate the evidence at the stage of
Section 389 CrPC and try to pick up a few
lacunae or loopholes here or there in the case
of the prosecution. Such would not be a
correct approach."
7. With respect to the criminal antecedent,
it is submitted that the said offence was
registered in the year 2014 nearly a decade
earlier and the trial therein is still pending. In
the facts of the case, the pendency of such an
old matter cannot, by itself, be a determinative
factor for refusing suspension of sentence.
8. Considering the totality of the
circumstances and applying the principles
elucidated by the Hon'ble Supreme Court, this
Court is of the considered view that the
applicant has made out a case for suspension of
sentence. Accordingly, the substantive sentence
imposed by the learned Extra Joint District
Judge & A.S.J. (Special Judge, POCSO Court),
Nagpur, in Special Criminal (POCSO) Case No.
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492/2021, vide judgment and order dated
25.11.2024, is hereby suspended, subject to the
following terms and conditions:
I. The applicant/appellant shall be released on
bail upon furnishing a personal bond of Rs. 25,000/-
with one solvent surety in the like amount before the
trial Court.
II. The applicant shall report before the concerned
trial Court on the first Monday of every calendar
month until further orders.
III. The applicant shall furnish her current
residential address and mobile number to the
concerned Sessions Court and shall inform the Court
forthwith of any change in address or contact number.
The application stands disposed of accordingly.
Heard.
ADMIT.
Call R & P.
The learned Additional Public Prosecutor
waives service of notice for respondent.
(NIVEDITA P. MEHTA, J.)
MP Deshpande
Signed by: Mr. M.P. Deshpande
Designation: PA To Honourable Judge
Date: 17/11/2025 18:33:10
