ndm 1 wp.769.09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 769 OF 2009 Rakesh @ Kamlesh Rambabu Joshi. ... PETITIONER Vs. The State of Maharashtra. ... RESPONDENT -------------- Mrs. Anjali Patil, Advocate for Petitioner. Mr. D.P. Adsule, APP, for the State Mr. D.N.Salvi with Mr. Kiran Kandpile, Advocate for CBI. -------------- CORAM : B.H. MARLAPALLE, & R.Y. GANOO, JJ. DATE : 11 th December, 2009. P.C. We have heard Mrs. Patil, the learned Advocate for the Petitioner, Mr.Adsule, the learned APP appears for the State of Maharashtra and Mr. Salvi appears for the CBI. 1. As noted in the earlier order passed, this Writ Petition survives only for the limited purpose of challenging the acts of the investigating agencies of filing three charge-sheets against the present ndm 2 wp.769.09.sxw Petitioner and that too without obtaining any permission under Section 173 of the Criminal Procedure Code. 2. Mr. Vijay Shrinivas Joshi, Assistant Commissioner of Police, who was the Investigating Officer in Criminal Case No. 233 of 2003 registered with the V.P. Road Police Station as well as Mr. Pramod Mudbhatkal, Superintendent of Police Special, CBI, Special Crime Branch, Mumbai have filed affidavits-in-reply. 3. It appears on 16 th May, 2002, the SS Branch of the Mumbai Police conducted a raid on a brothel at Suman Sandhya Building, Santacruz (W) and rescued 24 females and arrested four persons. Crime No. 20 of 2002 came to be registered with the Santacruz Police Station for the offence punishable under Sections 3, 4, 5 and 7 of the Prevention of Immoral Trafficking Act , 1956 (for short “the PITA”). These 24 girls alongwith the accused were produced before the learned Additional Chief Metropolitan Magistrate, 37 th Court, Esplanade, Mumbai. Fourteen girls were released as they were major, whereas remaining ten minor girls (below the age of 18 years) were sent to the observation home at Deonar ndm 3 wp.769.09.sxw with the directions that they may be produced before the Juvenile Court on 28.05.2002. On 28.05.2009, these ten minor girls were produced before the CWC (Child Welfare Committee). Advocate Mr. V.B. Jaiswal appearing for the accused persons insisted that they were required to be produced before the Juvenile Court. On his request, the Juvenile Court directed re-examination of all the ten victims for determining their age. On 13.06.2002, the ten girls were produced before the Juvenile Court, Advocate Mr. V.B. Jaiswal submitted his Vakil Patra on behalf of the girls and pleaded that they were innocent and they have not committed any offence. Consequently, the girls were released. This order came to be challenged by an NGO by name Prerna in Writ Petition No. 788 of 2002. 4. On 25.06.2002, the SS Branch arrested the present petitioner. On 07.10.2002, this Court issued guidelines and directed the Mumbai Police to trace all the ten minor girls. It also directed the Bar Council of Maharashtra and Goa to hold an enquiry into the conduct of Mr. V.B. Jaiswal. On 08.09.2003, investigation was completed in Crime No. 20 of 2002 and charge-sheet came to be filed in the Court of learned ndm 4 wp.769.09.sxw Additional Chief Metropolitan Magistrate, 37 th Court against five accused and the present Petitioner was the fifth accused. 5. On the basis of the complaint filed by Mr. Lazarus Barse, Social Worker from an NGO, a raid was conducted at Damodar Building, Girgaum, Mumbai by the SS Branch and six females were rescued. Crime No. 1109 of 2003 was registered with the V.P. Road Police Station, Mumbai for the offences punishable under Sections 4, 5 and 6 of the PITA. During the course of interview of these six girls, one of them by name Monica Amit Chakraborty, disclosed that she was earlier rescued by the police from Suman Sandhya Building, Santacruz (W) in May, 2002 and the Advocate appearing on her behalf got her released from the Court and re-inducted her into prostitution after taking her in a taxi to Damodar Building, Girgaum, Mumbai. On the basis of the said statement, Crime No. 233 of 2003 was registered on 02.09.2003 with the V.P. Road Police Station, Mumbai against Mr. V.B. Jaiswal and Crime No. 1109 of 2003 was amalgamated. On 11.03.2004, the SS Branch submitted a charge-sheet against five accused including the present ndm 5 wp.769.09.sxw Petitioner for the offences punishable under Sections 363, 372, 373, 366 (a) and 341 of the Indian Penal Code read with Sections 3, 4, 5, 6 and 7(I)(b) of the PITA Act. On 08.04.2004, the Additional Chief Metropolitan Magistrate committed the case to the Court of Sessions and registered as Sessions Case No. 269 of 2004. 6. The NGO, Prerna filed Criminal Writ Petition No. 1694 of 2003 before this Court and sought directions against the police to take steps to trace the remaining nine girls. On 29.08.2006, this Court directed the CBI to take steps to trace all the missing girls. The CBI registered the case as RC No. 13 (S) of 2006 – Mumbai for the offences punishable under Sections 372 and 373 of the Indian Penal Code read with Sections 3, 4, 5 and 6 of the PITA and took up investigation. During the course of this investigation, the CBI traced out six of the nine missing girls from Shilong (Meghalaya), Andhra Pradesh, Assam etc. On 07.02.2008, the CBI recorded the statements of Monica @ Laxmi Chhetri as well as Smt. Asia Begum, originally resident of Asam. On completion of investigation, CBI submitted two additional charge-sheets in two ndm 6 wp.769.09.sxw different cases on 29.12.2008 i.e. in Crime No. 20 of 2002 and Crime No. 233 of 2003. 7. It is under these circumstances, this Writ Petition, filed under Article 226 of the Constitution of India, questions the legality of filing three different charge-sheets against the Petitioner and it was submitted by Mrs. Patil that the CBI acted contrary to the provisions of Section 173 of the Criminal Procedure Code and illegally filed the additional charge- sheets. She also pointed out that the Petitioner has already been discharged by the learned Additional Sessions Judge by his order dated 24.10.2005 i.e. much before this Court passed the order dated 29.08.2006 in Writ Petition No. 1694 of 2003 directing the CBI to trace out the missing girls, in Miscellaneous Application No. 1223 of 2005 filed in Sessions Case No. 269 of 2004. It was submitted by Mrs. Patil that when the Petitioner has been discharged for all the offences including the offences punishable under Sections 372 and 373 of the Indian Penal Code, on the basis of the statement of the very same victim girl i.e. Monica @ Laxmi Chhetri, the law does not permit the CBI to investigate ndm 7 wp.769.09.sxw and to file a supplementary charge-sheet against the Petitioner for the very same offence. On these limited grounds, Mrs. Patil prays to quash the proceedings pending before the Sessions Court against the Petitioner. 8. There is no doubt that pursuant to the order passed by this Court on 29.08.2006, the CBI was obliged to register the crime and undertake investigation into the missing minor girls, who were rescued from the brothel. In that process, the CBI recorded the statements of Monica as well as Asia Begum. 9. We have gone through these statements as well as the order of discharge passed by the learned Additional Session Judge on 24.10.2005. The learned Additional Sessions Judge noted the statement of Laxmi Chhetri as was pointed out by Mrs. Patil who had appeared for the Petitioner in MA No. 1223 of 2005 and the said statement was re- produced in the order. We deem it necessary to reproduce the same sentence in this order as well, regarding the role attributed to the present Petitioner and as it came for consideration before the learned Additional ndm 8 wp.769.09.sxw Sessions Judge in SC No. 269 of 2004. “Sadar Rakesh Joshi Hach Santacruz Yethil Kunthan Khanyacha Malak Asun, Tyachi Patni He Shilong Yethil Rahanari Ahe. Yach Rakesh Ne Mala Vakil Jaiswal Marfat Navalkar Lane Madhil Damodar Imartit Pahilya Majalyawaril Kholit Chalanarya Kunthan Khanyat Vikale Asa Maza Sanshai Aahe”. 10. The learned Additional Session Judge noted that the learned APP was unable to satisfy the Court as to how the words “Sanshay Aahe” can be considered to be giving positive evidence of a positive involvement of the accused – applicant and on that sole ground, the present Petitioner is discharged by allowing his application. 11. Be that as it may, the detailed statement recorded by the CBI of Laxmi Chhetri on 07.02.2008, indicates, inter-alia, the allegations against the Petitioner and his wife procuring minor girls on payment of cash to their agents from Assam and other States, brining them to their house at Mumbai, making them work for about few months and thereafter, introduce them in commercial sex. The CBI, thereafter, proceeded to investigate the matter, completed the investigation and has ndm 9 wp.769.09.sxw filed the charge-sheets. A copy of the charge-sheet has been perused by us alongwith statements of witnesses accompanying them. We are satisfied that the discharge of the Petitioner by allowing his application i.e. Miscellaneous Application No. 1223 of 2005 in Sessions Case No. 269 of 2004 will not affect the powers of the CBI to file an additional charge-sheet in both the cases under the provisions of Section 173 (8) of the Criminal Procedure Code and more so when the said agency was directed by this Court to investigate and take all appropriate steps. 12. Hence this Petition fails at the threshold and the same is hereby dismissed. [ B.H. MARLAPALLE, J ] [ R.Y. GANOO, J ]