abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3873 OF 2007 1. Reshma @ Sharmila Raj 2. Rajani Thakur @ Karmavat .. Applicants V/s The State of Maharashtra .. Respondent Mr.P.D. Dalvi for the applicant. Mrs.Heena P. Shah for respondent no.2. Mrs. M.M. Deshmukh, A.P.P. for the State. CORAM : D.G. KARNIK, J. DATE : 6TH FEBRUARY 2008 P.C. P.C. P.C. : 1. Heard. 2. By this application, the applicants seek bail in respect of a crime registered by the C.B.I. as C.R. No.3/S/2007-Mumbai for the alleged offence punishable under sections 366-A, 372 and 120-B of the Indian Penal Code and sections 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 (for short "PITA"). - 2 - 3. The prosecution case as disclosed in the FIR (counsel for the applicants and the CBI stated that the statement dated 11th May 2007 of Priya Thakur is the FIR) is that Priya had come to Mumbai to stay with her buva (father’s sister Sonam) about 4 years ago. Priya was working as a waitress in a dance bar and getting Rs.200/- to Rs.300/- as tip for the evening. She used to go for work in an auto-rickshaw of Yadav @ Shivnath Paul. She also knew another Yadav, a man with a trimmed beard who was also a rickshaw driver. On two occasions, Yadav made a proposal to Priya through the applicants to ave a sex with his customers for a price. He offered Rs.25,000/- for having sex. The proposal was accepted by Priya. Two incidents have been narrated when Priya went for sex, but the deal did not materialise either because the customer did not come or the room was not available. On the third occasion, Priya went to Hotel Natwar where a deal for Rs.25,000/- was fixed with an Angrez (English man) for having sex. At that time, a raid was conducted by the CBI and the applicants were arrested. According to the prosecution, the applicants were guilty of the offences charged. 4. Statements of other two girls Jyoti @ Shashi Rajput and Khushboo Thakur were also recorded though they appear to have been recorded one day earlier. - 3 - 5. After the charge sheet was filed, the applicants applied for bail to the Sessions Court. By an order dated 14th November 2007, the learned Sessions Judge rejected the said application. Reasons given by the learned Sessions Judge for rejection of the order in para 9 are quoted below:- "9. So far merits of the case are concerned, admittedly complainant Navin Rego is a Social Worker. On the basis of complaint filed by him, CBI has arranged the trap in which accused Nos.1, 2 and 3 were caught red handed while selling three minor victim girls to the customer by accepting price of Rs.60,000/- for one of them viz. Jyoti Thakur aged below 13 years. There is a specific mention in the complaint that accused No.1 along with his accomplices was indulged into selling minor girls for prostitution and also letting them on hire." It appears that the bail was refused by the learned Sessions Judge inter alia on the ground that the applicants were caught red handed while selling three minor girls to the customers by accepting Rs.60,000/-. Whole of the FIR dated 11th May 2007 (statement of Priya Thakur) does not disclose that there was any sale or attempt of sale of the girls. In her statement, Priya - 4 - has stated that she was offered a sum of Rs.25,000/- for having sex with a foreigner. On my query to the learned counsel for the CBI to point out any material on record regarding the allegation of sale of minor girls, she stated that there is some evidence in the original papers which are in custody of Mr.Pramod Mudbhatkal, Additional Superintendent of Police. However, no such papers were filed in the Court and there is nothing on record to show that there was any material of sale of girls or minor girls. The allegations in the FIR taken as they are would, at the most, make an offence punishable under sections 4 and 5 of PITA. Offence under section 4 of PITA is punishable with imprisonment which may extend to 2 years and offence under section 5 of PITA is punishable with imprisonment for a term of not less than 3years but not more than 7 years. It is not shown that Priya was a child. 6. Learned counsel for the CBI confirmed that there are no antecedents of any crime by the applicants. None of the two applicants was ever convicted or prosecuted for an offence either under the Indian Penal Code or PITA. Both the applicants are women. First proviso to clause (ii) of sub-section (1) of section 437 of the Code of Criminal Procedure, to which my attention was invited, provides that the court may release the accused on bail if he is under the age of 16 years or is a woman - 5 - or a sick or infirm. The applicants being women are covered by the proviso. 7. The applicants are in custody since 26th April 2007, that is for a period of more than 8 months. The trial has not commenced. Taking into consideration that the trial is not likely to commence in the near future on account of long pendency of cases in the criminal courts and also the fact that the applicants are the first offenders and are women and the maximum punishment for the offence is 7 years, in my view, the applicants are entitled to bail subject to the strict conditions which would ensure that the offence is not repeated by them. In the circumstances, I pass the following order:- ORDER ORDER ORDER The applicant be released on bail in respect of the offence mentioned above on each of them executing personal bond of Rs.30,000/- with two sureties in the like amount subject to the following conditions: (a) The applicants shall file an undertaking in this Court that they shall not make any inducement or threats to any of the prosecution witnesses and shall not indulge in offence while on bail. - 6 - (b) The applicants shall inform their residential address to the CBI, Belapur within 7 days of their release and shall not change the residence without prior intimation to the CBI. (c) The applicants shall attend the office of CBI, Belapur once a week on every Monday between 10.00 a.m. and 12.00 noon. . Application is disposed of. (D.G. KARNIK, J.)