Shaheen Taj @ Shaheen Taj Sultan vs State By Govindapura Police
2022 Latest Caselaw 10769 Kant

                           1



      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 14TH DAY OF JULY, 2022

                         BEFORE

          THE HON'BLE MR. JUSTICE H.P. SANDESH

             CRIMINAL PETITION NO.4906/2022

BETWEEN

SHAHEEN TAJ @ SHAHEEN TAJ SULTAN
W/O S A SULTAN
AGED ABOUT 49 YEARS
R/O NO, 48, KNO1559/1/301
6TH CROSS, RASHAD NAGAR
NEAR RISING STAR SCHOOL
BENGALURU NORTH
BENGALURU - 560005
                                              ...PETITIONER
(BY SRI SYED AKBAR PASHA, ADVOCATE)

AND

STATE BY GOVINDAPURA POLICE
REP. BY ITS PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560001
                                           ... RESPONDENT

(BY SRI MAHESH SHETTY, HCGP FOR STATE;
 SRI ZAMEER PASHA, ADVOCATE FOR COMPLAINANT)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 439
OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CR.NO.37/2022 OF GOVINDAPURA P.S., BENGALURU CITY FOR
THE OFFENCE P/U/S.370, 372, 506 OF IPC AND ETC.
                                    2



     THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:

                              ORDER

This petition is filed under Section 439 of Cr.P.C. seeking

regular bail of the petitioner in Crime No.37/2022 of

Govindapura Police Station, Bengaluru City for the Offences

punishable under Sections 370, 372, 506 of IPC.

2. Heard the learned counsel for the petitioner, the

learned High Court Government Pleader appearing for the

respondent-State and the learned counsel appearing for the

defacto complainant.

3. The factual matrix of the case is that the daughter

who is the complainant had lodged the complaint against her

mother i.e., the petitioner herein wherein an allegation is made

that when she was 14 years old in the year 2008, her mother

asked her to accompany with a person and be kind to him and

also it is an allegation that the said person came and took the

complainant to unknown place and subjected her for sexual act

and after three years, again, the complainant was sent to Pune

and there also she was subjected for sexual act for ten days and

she was brought back to the home and inspite of resistance from

the complainant, again she was sent to Mumbai in the year

2013-2014, there the police have conducted the raid and a case

was registered against the petitioner and the complainant was

sent to Vidyaranya Home NGO Institution. It is also an

allegation that she had saved some money and in the said

money, a site was purchased in the name of the petitioner and a

house was also constructed there and the petitioner also

executed a gift deed in favour of the complainant but the house

was not given to the complainant instead of that, she used to

collect the rent amount and again by force, the complainant was

subjected for prostitution if she want the said house and the

petitioner is having an habit of subjecting her for prostitution

and hence, the complaint is filed and the case has been

registered for the aforesaid offences and the matter is under

investigation.

4. The learned counsel appearing for the petitioner

would submit that the present complaint is after thought

complaint when civil dispute arises between the parties and the

counsel brought to the notice of this Court that earlier, a

complaint was given to the police making an allegation against

this petitioner and case was not registered hence, the complaint

was filed under PCR and the same is numbered as PCR No.

54951/2021 and the matter was referred for investigation and

consequently, FIR was registered in Cr.No.147/2021. The

counsel also brought to notice of this Court to paragraphs 3 to 7

of PCR and referring the said paragraphs, the counsel submits

that there is no allegation of subjecting her for women trafficking

and only the offences punishable under Section 379, 420, 506,

447 read with Section 34 of IPC are invoked in the private

complaint, hence, it is clear that only an after thought, the

present complaint is filed. The counsel also submits that when

there is no allegation prior to filing of this complaint with regard

to subjecting her for women trafficking and this petitioner is in

custody from 07.04.2022 hence, there is no need of further

custodial trial and prayed to allow the petition.

5. Per contra, the learned High Court Government

Pleader appearing for the respondent-State would submit that,

when the victim girl was 14 years old, she was subjected to

prostitution by the petitioner and when the raid was conducted,

the victim was apprehended and Mumbai Court, while passing a

final order, in paragraph 5 observed that the victim is from

Bengaluru and the victim was previously given in custody of her

parents. It is also mentioned that, as per Probation Officer's

report, victim again came to Mumbai and immediately, the pimp

called her saying that if she wants money offered her

prostitution. It shows that as soon as victim left her native place

and came to Mumbai she is induced to do business of

prostitution. On inquiry victim stated that she is not interested

in doing business of prostitution in future. The above referred

circumstances show that if she is again given in the custody of

her alleged mother, people will again induce her to enter in this

business. Hence, it appears that victim is in need of care and

protection, so that she is not again involved in the business of

prostitution and hence, to be given in custody of an institution

for her rehabilitation and vocational training.

6. The learned High Court Government Pleader for the

respondent-State referring this order passed by the Mumbai

Court submits that, it is clear that the victim was subjected to

prostitution at the hands of the mother repeatedly and hence,

the Court comes to the conclusion that the complainant is not

safe at the hands of this petitioner i.e., the mother. Hence, the

Mumbai Court ordered for rehabilitation and vocational training.

7. The learned counsel appearing for the defacto

complainant also reiterated paragraph No.5 of the order passed

by the Mumbai Court and also relied upon the judgment of the

Apex Court in the case of JAGJEET SINGH & ORS. VS.

ASHISH MISHRA @ MONU & ANR. reported in 2002 Live

Law (SC) 376 wherein, the Apex Court has taken note of the

defence of the victim as amended in Criminal Procedure Code

and the same is discussed in paragraph No.24 of the judgment.

In paragraph No.25, the Apex Court, taking note of the serious

and heinous offence and referring the special enactment like

Scheduled Caste and Scheduled Tribes (Prevention of Atrocities)

Act, 1989, observed that there is a legal obligation to hear the

victim at the time of granting bail. Instead, what must be taken

note of is that; First, the Indian jurisprudence is constantly

evolving, whereby, the right of victims to be heard, especially in

cases involving heinous crimes, is increasingly being

acknowledged; Second, where the victims themselves have

come forward to participate in a criminal proceeding, they must

be accorded with an opportunity of a fair and effective hearing.

If the right to file an appeal against acquittal, is not accompanied

with the right to be heard at the time of deciding a bail

application, the same may result in grave miscarriage of justice.

Victims certainly cannot be expected to be sitting on the fence

and watching the proceedings from afar, especially when they

may have legitimate grievances. It is the solemn duty of a Court

to deliver justice before the memory of an injustice eclipses.

8. Having considered the principles laid down in the

judgment of the Apex Court which is delivered recently on

18.04.2022, the learned counsel appearing for the defacto

complainant is given an audience to submit the case of the

defacto complainant. The counsel also brought to notice of this

Court the judgment passed by the Delhi High Court dated

16.02.2022 in respect of invoking the offence under Sections

370 and 376 of IPC, wherein also discussed with regard to

trafficking a minor tribal girl aged 14 years, noting that it was

unfortunate that an innocent girl of tender age was subjected to

heinous crimes and was severely abused, exploited and tortured

by several people. The counsel also brought to notice of this

Court paragraph Nos.12, 13 and 14, wherein also the Delhi High

Court has discussed with regard to the offence under Sections

370 and 376 of IPC and observed that the said offences are

grave and serious in nature and have adverse social implications

and considering the said fact, the petitioner has been charged

for trafficking a minor girl which is in itself is heinous offence,

the Court rejected the bail petition, even after filing of the

charge-sheet.

9. The counsel referring these two judgments of the

Apex Court as well as the Delhi High Court would contend that

when the victim/defacto complainant was aged about 14 years,

from that age itself, she was subjected to prostitution by her

own mother, who is the petitioner herein. The order passed by

the Mumbai Court is very clear that, inspite of the fact that

custody was given to the parents earlier, she was again

subjected for prostitution. Hence, counsel prays for rejection of

bail petition.

10. Having heard the learned counsel for the petitioner,

learned counsel for the defacto complainant and the learned

High Court Government Pleader for the respondent-State, the

Court has to look into the contents of the complaint while

considering the bail petition, since investigation is not yet

completed. In the complaint also, she has reiterated that, when

she was 14 years old in 2018, she was subjected to women

trafficking and she was sent along with unknown person and

subjected her for prostitution. In paragraph No.3 of the

complaint also, the victim has stated that, she was scared and

frustrated and the petitioner herein sent her along with unknown

person to unknown place and she was sexually exploited by

unknown person and she has also explained that, she was sent

to Mumbai and other places like Pune, Rajput etc., and specific

allegations are also made that, she was arrested at Mumbai and

she was also given to NGO institution for her custody and was

referred to rehabilitation. The specific allegation of the victim is

that, even after rehabilitation also, the mother forced her to

subject herself for prostitution. When such serious allegation is

made against the mother and allegation is also made that from

the age of 14 years, she was subjected to prostitution and she

was also arrested at Mumbai and in the order passed in

R.A.No.34/RA/2014, the Mumbai Court in paragraph No.5

observed that the custody given to the parents earlier was

misused and repeatedly, she was subjected to prostitution.

Hence, the victim was referred to rehabilitation centre.

11. When such being the material on record, when series

of allegations subjecting the daughter for prostitution and

women trafficking by the mother is made, there is a force in the

contention of the learned High Court Government Pleader for the

respondent-State as well as the defacto complainant that the

victim was subjected to prostitution, when she was aged about

14 years and continued the same, even after the alleged

reformation also and she was forced to subject herself for sexual

act. It has also emerged from the records that the complainant

also filed a private complaint before the Court in

PCR No.54951/2021, wherein an allegation is made with regard

to acquiring the property and construction of property and

though executed the gift deed, possession was not given. As

rightly pointed out by the learned counsel for the petitioner, with

regard to subjecting the victim for women trafficking, nothing is

mentioned in the said complaint and the Court has to take note

of the contents of the complaint particularly, when the offences

under Sections 379, 420, 447 and 506 read with Section 34 are

invoked.

12. When such offences are invoked and offence under

Sections 370 and 372 of IPC are not invoked, the same is not

material at the time of considering the bail petition and the Court

has to take note of the contents of the complaint, wherein

specific allegations are made that when the victim was minor,

she was subjected to prostitution at the hands of this petitioner

and the matter is under investigation and the investigation is not

yet completed, at this juncture, it is not a fit case to exercise the

powers under Section 439 of Cr.P.C. to enlarge the petitioner on

bail.

13. In view of the discussions made above, I pass the

following:

ORDER

The criminal petition is rejected. However, liberty is reserved to approach the Court, after filing of the charge-sheet.

Sd/-

JUDGE

SN/ST