1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 23 DAY OF AUGUST, 2010 BEFORE THE HON’BLE MR. JUSTICE JAWAD RAHIM CRL.R.P No. 794 OF 2009 BETWEEN: DR.SUDHIR L.VENEKAR, AGED ABOUT 60 YEARS, IDEAL NURSING HOME, NO.28, NANDIDURG ROAD, BENSON TOWN, BANGALORE. PtunONER (BY SRI NAVKESH BATRA, ADV. FOR NANDI LAW CHAMBERS) AND: STATE BY J.C.NAGAR POUCE STATION RESPONDENT (BY SRI RAJASUBRAMANYA BHAT, HCGP) CRL.RP FILED U/S 397 R/W 401 CR.P.C PRAYING TO SET ASIDE ThE ORDER DATED 15-09-2009 (ANNEXURE-A) PASSED BY THE XIII FAST TRACK COURT, BANGALORE CITY IN S.C.NO.653/2006 AND DISCHARGE THE PtTITIONER FROM THE OFFENCES ALLEGED U/Ss 120-B, 372, 373, 420, 468, 471, 342 PJW 511 IPC AND SEC.23 OF JUVENILE JUSTICE ACT. THIS Pt u i tION IS COMING ON FOR FINAL DISPOSAL THIS DAY, THE MADE DEUVERED THE FOLLOWING: - ORDER Accused no5-Dr.Sudhir L.Venekar is in revision against rejection of his application seeking discharge from prosecution in SC653/O6. 2. Heard learned counsel, Sri Navkesh Batra for the petitioner and learned HCGP, Sri Raja Subrahmanya Bhat, and examined records in supplementation thereto. 3. The material allegations manifest from the charge sheet, on the basis of which the petitioner and seven other accused were arraigned for the offences punishable under Sections 120-B, 372, 373, 420, 468, 471, 342 read with Section 511, LPC. and Section 23 of the Juvenile Justice Act, reveals: a) MK.Ganapathi, Assistant Commissioner of Police, City Crime Branch, having come across a report in a daily newspaper, TIMES OF INDIA alleging a racket of sale of babies and new borns in Bangalore, met CW2-Mahesh Singh and Bansi Kalappa (CW5), reporter of TIMES OF INDIA, and it appears he embarked on investigation suo moto. 3 b) During inter action with them, he learnt that the petitioner incharge of and others in charge of Ideal Nursing Home were indulging in such illegal activity. He constituted a team consisting of CW2-Mahesh Singh and CW5-Bansi Kalappa and made them decoys. In pursuance to their initial planning, on 27.72OO3 CW2 and CW5 visited Ideal Nursing Home. They approached 1 st accused-Mercy Fernandes , representing to her that he (CW2) was childless and was keen in adopting a child. Mercy Fernandes ( 1 st accused) offered to sell a female baby for Rs.70,000/- and undertook to create and concoct documents regarding birth of the baby. She demanded Rs.20,000/- as advance to which he agreed. c) CW2-Mahesh Singh enquired as to whether the baby he would receive could be certified as his child and whether doctors in charge of the hospital would agree to it. It appears 1 st accused-Mercy Fernandes revealed Dr.Sudhir LVenekar (petitioner herein) was arranging for such sale of babies and would actively participate in such transaction. d) Thereafter complainant-M.K.Ganapathi, Assistant Commissioner of Police, along with CW2 (Mahesh Singh) and 4 CW5 (Bansi Kalappa) met at noon on the same day and arranged Rs.20,000/- as bait money and chemically treated It with phenolphthaieln to be paid to 1 accused (Mercy Fernandes) during the trap. They then allowed CW2 to call upon 1 accused-Mercy Femandes to receive the amount and she in turn informed them to meet near Jam Hospital where 2 nd accused-Glory Alex and Savithramma ( 4 th accused) would be available with the baby. e) Accordingly, raid was conducted on 27.7.2003 as planned. Mercy Fernandes (1 accused) is alleged to have received Rs.20,000 and gave fake birth certificate. Glory Alex ( 2 nd accused) and Savithramma ( 4 th accused) appeared with the baby. They paId the amount and took custody of the baby and also arrested accused nos.1 to 4. f) Report in this regard was prepared and suo moto case was registered in Crime NO.240/03 for the principal offence under Section 372, I.P.C. read with Section 34, and further investigation continued. On 29.7.2003, they unearthed several instances of similar sale of babies. i-Jr g) During such investigation, it transpired that 2 accused (Glory Alex) connived with her husband, Prabhu Alexandar (6 accused) to secure the female baby for sale to CW2 (Mahesh Singh). It further revealed that Prabhu Alexander ( 6 th accused) had contacted J.Patrick ( 7 th accused) and through him had located the female child at Chennai born 15 days earlier to one Shyamala (CW11) and convinced her that the baby would be given in adoption to a childless couple who will have a secured future. In this manner, it is alleged they had connived with accused nos.7 and 8 (i.Patrick and Savithramma respectively) and prevailed upon Shyamala (CW11) and her mother Nagammal (CW12) to part with the baby in consideration of Rs.5,000/-. h) Investigation revealed initially CW12 had declined to receive the amount but thereafter fell prey to their false promises that the baby would be adopted by a childless couple which was in fact a ruse to purchase the baby for illegal exploitation. i) Prosecution allegation is, accused nos.1 to 6 in the manner aforesaid had induced Shyamala (CW11) and her 6 mother, Nagammal (CW12) and had taken the baby on 26.7.2003. j) After recording the statement of witnesses, the investigating officer raided Ideal Nursing Home owned by the petitioner and seized fake birth certificates. One such certificate related to the female baby sold to CW2-Mahesh Singh (decoy) by accused nos.1 to 6 in which there was a certification that the child was born to him (CW2) in Ideal Nursing Home. On the basis of such discovery of criminal conspiracy between accused nos.1 to 4 and 6 to 8 with the petitioner (accused no.5), charge sheet is filed for the offences punishable under Sections 120-B IPC, 372, 373, 420, 468, 471, 342 r/w 511 IPC and Section 23 of the juvenile Justice Act. k) The material coflected during investigation and compiled in the form of final report under Section 173, Cr.P.C. (charge sheet) contains statement of Mercy Fernandes (ist accused) in which she is alleged to have revealed that petitioner herein-Dr.Sudhir L.Venekar was the owner of Ideal Nursing Home and birth certificates were 7 fake under his signature, certifying the birth of children in the said hospital, though they were not born there. I) We are concerned in this case as to whether the ocular testimony of witnesses and the material collected during investigation makes out a case against the petitioner herein 5 th accused) to sustain the charge for the various offences referred to above. 4. Learned counsel, Sri Navkesh Bhatra for the petitioner, would contend the entire material collected during investigation which is In the form of statement of witnesses and documents does not even remotely Indicate such offence was committed and even presuming there Is some material regarding alleged sale of female babies, It does not create even a suspldon against the petitioner Dr.Sudhir L.Venekar. It may, at the most, create a suspicion against the other accused, but in no manner even remotely, suggests conspIracy between him and other accused or his Individual overt acts to face any of the charges levelled. 8 5. In his persuasive eloquence and endeavour to seek discharge for the petitioner, Mr.Bhatra referred to the so- called Incriminating material compiled In the form of charge sheet against the petitioner. His first reference is to the statement of CW2 (Mahesh Singh) who claims to have approached the 1 accused (Mercy Fernandes) and none else. His statement also reveals she had brought in her husband Prabhu Alexandar ( 6 th accused) as the person who would arrange for the new born. The second part of his statement reveals 1 accused had assured him of creating fake bIrth certificate that the child was born In Ideal Nursing Home and thereafter received Rs.20,000/- offered by him and told him to go near Jam Hospital. According to the learned counsel, there is no material to show any incriminating aspect about the petltloner-Dr.Sudhir L.Venekar. 6. It Is necessary to extract the relevant portion of his statement which is as follows: ‘Afternoon about 1.30 p.m, myself and Bansikallappa reached nursing home telling Bansikalappa to keep the van outside the nursing home and to be there only and I went straight inside the nursing home and me Mercy Fernandez who was at the reception and gave Rs.20,000/- given to my custody earlier signed 9 by the ACP and panchas. Immediately she gave in my hand Birth Certificate in the name of the nursing home and one small chit and told me that the baby Is with someone of her side at different place and are waiting and now I will send one lady with you now and you go with her and take the child and other things we will talk tomorrow. On seeing the Birth certificate given by Mercy fernandes, in that the record was written as if a female baby was born to Veena and Suresh on 24.07.03. On the said letter there was signature of the Nursing home’s doctor and Nursing Home’s Dr.Sudhir Vernekar was standing there only. Having seen him on 27.07.3003, today that Is 28.07.04 I again saw and identified. Mercy Fernandes put the money given by me in the cash draw in the counter and locked and cane with me outside alongwith me she called another lady and introduced that lady as Glory Alex and told me that she will you to place where the baby Is there and told me that the baby Is very nice, after taking care of her she can be used for illegal purpose and earn handful of money. Then I told her that I have Intention to take care of the baby and not to earn profit. While Glory sent by Mercy Fernandes along with us was climbing our maruthi van, Mercy Fernandes told me best of luck and went of. Before entering the maruthi van, I lifted my hand and signaled to the police who were observing us from distance and climbed the maruti van and came to the millers road in the way Gloria who had come there, told us, Police officers were following our car from little distance. Near the Airtel office at Millers Road, near Jam Hospital informing the lady who was with us getting down from the car went near the two ladies standing on the opposite footpath and spoke to them for 1-2 minutes. Out of the said standing ladies one was holding a baby wrapped in a doth all the three came near the car. When I opened the car ladies holding the baby gave it to my custody. Taking possession of the baby, acting as if talking to them, at time the police officials who were following us surrounded us with the 10 help of women police all the three ladies were taken custody. The ladies who were waiting keeping the baby with them, later I came to know that one of them was Glory Alex’s sister Sarala and another was her house maid Savitramma. Immediately the three ladies were put in our maruti van and along with the police officers we came to ideal nursing home. As per ACP’s instruction the baby was given in custody to the women police. Coming there, we and police officials, the 3 ladies along with the baby entered nursing home Mercy Fernandez was sitting in the cash counter. When we came there ACP Ganapathi enquired Mercy fernandes and when he asked her to produce the money taken from me earlier, Mercy Fernandez produced the Rs.20,000/- given to her which was kept in the cash counter. Later on ACP asking her to produce the Nursing Home’s birth and death register, she gave that too. ACP told that he is seizing them and siezed the said money. Register and the birth certificate given to me, in the presence of the Panchas after writing the Mahazar. And later calling Dr.Sudhir L.Venekar who was in the nursing home only and informing him that he is also being arrested he and Fernandez were given to the custody of his officials and all the five accused were brought to J.C.Nagar police Station after 5’o clock in the evening. The Mahazar regarding the seizure by ACP of the money and records in the Ideal Nursing Home was written between 2.00 clock to 5.00 clock, in the Nursing Home and being present there I signed the Mahazar after it was written. I confirm the contents of the Mahazar.’ From the extracted portion, it is seen all that CW2 (Mahesh Singh) has spoken to is about Mercy Fernandes ( 1 st accused), Glory Alex (2 accused), Sarla (3 accused) and Savithramma ( 8 th accused). The only incriminating aspect ii spoken to by him about the petitioner is ‘later calling DRSudhir LVenekar who was in the nursing home only and informing him that he is also being arrested he and Fernandez were given to the custody of his officials and all the five accused were brought to .].C.Nagar police Station after 5’o clock in the evening’ 7. It is the assertive contention of Mr.Bhatra that the prosecution material also available makes out no case to put the petitioner to trial. 8. In negation of all the grounds in support of discharge urged by Mr.Bhatra, Sri Raja Subrahmanya Bhat, learned HCGP, would submit the charges levelled against the accused are not only serious in nature, but constitute offences for which we cannot expect direct incriminating material. Such offences are committed by accused nos.1 to 8 as a result of deep criminal conspiracy falling in the ambit of Section 120-B, I.P.C. Therefore, we cannot expect from the prosecution direct incriminating material but we must infer conspiracy against each of the accused. He has referred to the prosecution material compiled in the form of charge sheet and as both sides have referred to the same 12 material, I deem it necessary to set out the chronology of events. • 27.7.2003 is the date on whIch M.K.Ganapathi Assistant Commissioner of Police, discussed with Mahesh Singh (CW2) and Bansl Kalappa (CW5), a reporter of TIMES OF INDIA to unearth the racket regarding sale of babies. He requested them to be decoys and In furtherance of such planning, on the same day, Mahesh Slngh (CW2) and Bansi Kalappa (CW5) visited Ideal Nursing Home of the petitioner. They met the receptionist-Mercy Fernandes (1 accused). According to the prosecution, they ascertained from her about sale of new borns in the nursing home. But perusal of the statement of CW2 reveals otherwise. I have already referred to his statement relating to the alleged raid conducted in the premises of Ideal Nursing Home and what he speaks. From his statement, it Is apparent that the decoys offered to take the child in adoption and there is nothing to show that they had offered to purchase the baby for being used in a brothel or for prostitution. No doubt payment of Rs.20,000/- by them to 1 accused (Mercy Fernandes) is said to be established through statements of 13 three witnesses, viz., CW2, CW5 and police officers. But it is material to note that CW2, the star witness of the prosecution after speaking much about Mercy Fernandes ( 1 t accused), does not refer to the role played by Dr.Sudhir L.Venekar (petitioner herein), except that Mercy Fernandes pointed out to the petitioner who was in the hospital to say that he was the owner. • What transpired on 27.7.2003 during raid is, payment of Rs.20,000/- to Mercy Fernandes ( 1 st accused) and then she handing over fake birth certificate to CW2 and Glory Alex (2 accused) taking them to a place near Jam Hospital where they met Savithramma ( 4 th accused), Sarla (3 accused) who handed them the female baby. • Neither on 27.7.2003 nor on 28.7.2003, there is any mention of either the presence of the petitioner-Dr.Sudhir L.Venekar nor of any role he played. Since the case of the prosecution totally rests on the raid conducted on 28.7.2003, what transpired on that date is material. • CW2 in his statement speaks only of Glory Alex (2 accused) sent by Mercy Fernandes ( 1 st accused) upto the 14 Maruti van and proceeding to a place near Airtel office near Miller’s Road, Bangalore, where Saria ( 3 d1 accused) and Savithramma ( 4 th accused) handed him the female baby. Thus the persons who actually handed over the baby to Mahesh Singh (CW2) are: Saria (3 accused) and Savithramma ( 4 th accused). Accused no.2 (Glory Alex) is said to have accompanied them. The accused are said to have been brought to the nursing home where they were arrested along with the petitioner. • The role attributed to the accused is: Mercy Fernandes (1 accused) received Rs.20,000/- from the decoy and gives him fake birth certificate. Glory Aiex (2’ accused) deputes her husband-Prabhu Alexander ( 6 th accused) to secure the baby much prior to the aileged raid. The allegation is, Glory Alex sent her husband to Chennai on 20.7.2003 to locate the baby; he contacted his relative J.Patrick ( 7 th accused) • and both of them visited Susheelamma ( 8 th accused) and went to Shyamala (CW11) who had given birth to the baby. Prabhu Alexander and ).Patrick persuaded Shyamala to give the infant to Prabhu Alexander who assured her the baby will lead a good life and offered Rs.5,000/-, but she refused. OS 15 Then Shyamala and her mother, Nagammal (CW12) agreed to give the baby in adoption and came to Bangalore on 25.7.2003. They then handed over the baby to Prabhu Alexander ( 6 th accused) who in turn reached Bangalore and informed his wife. Shyamala-CW11, her mother-Nagammal (CW12), ].Patrick ( 7 th accused) accused Susheelamma ( 8 th accused) accompanies the mother of the child to Bangalore on 26.7.2003 and contacted Prabhu Alexander ( 6 th accused) who was already in Bangalore. 9. As already pointed out by Mr.Bhatra, the chronology of events in the charge sheet shows that Glory Alex (2 accused) sends her husband-Prabhu Alexander (6t accused) on 20.7.2003 much before the alleged raid to find out the baby. He comes back to Bangalore on 25.7.2003; Shyamala (CW11) and her mother also come to Bangalore on 26.7.2003. They meet him on 26.7.2003. 10. As against these facts, FIR reveals for the first time, M.K.Ganapathi, Asst. Commissioner of Police, discusses about the racked with CW2-Mahesh Singh and Bansi 16 Kalappa (CW5) only on 27.7.2003 and not earlier. Therefore all that has transpired between Glory Alex (2”’ accused), her husband-Prabhu Alexander ( 6 th1 accused), J.Patrick ( 7 th accused), Shyamala-CW11 (mother of the child) and her mother-Nagammal (CW12) is between 20.7.2003 and 26.7.2003. 11. Mr.Bhatra is right In poInting out that Investigation is totally silent as to at whose instance accused nos.2, 6, 7 and 8 had approached Shyamala-mother of the child. Undoubtedly it was not at the instance of Mahesh Fernandes (1 accused) with whom the decoy-Mahesh Slngh met for the first time on 27.7.2003. 12. I am persuaded to accept the contention that getting the baby from Chennal cannot be linked to the alleged transaction between Mahesh Slngh-decoy and 1 accused (Mercy Fernandes) on 27.7.2003. At the most, it may show that accused nos.1, 2, 6, 7 and 8 have been trying to procure babies, may be for sale as alleged, but the question is, whether such illegal acts IndIct the petitioner herein-Dr.Sudhir L.Venekar. This is because petitioner is 17 arraigned with other accused for alleged sale of baby belonging to Shyamala (CW11) and nobody else. 13. Several charges raised against the petitioner along with other accused is on the basis of alleged conspiracy. Therefore, it is incumbent on the prosecution to first reveal the incriminating material relating to the principal charge and then substantiate that such offence committed by all the accused is the result of criminal conspiracy. Therefore, to seek punishment of a particular accused based on alleged conspiracy, it must be shown he had conspired for the particular offence alleged to have been committed. This has to be kept in mind to examine whether there is prima facie material against the petitioner herein. 14. Be that as it may, prosecution has arraigned the petitioner for the offences punishable under Sections 120B, 372, 373, 420, 468, 471, 342 read with Section 511, I.P.C. and Section 23 of the Juvenile Justice Act. The trial court has framed charges against the petitioner for the said offences. From the material collected during investigation, it is manifest that the petitioner has been arraigned for the offences referred to above virtually on the basis of material 18 which indicts the other accused directly. It could also be noticed that the petitioner has been arraigned for various offences using Section 1208, I.P.C. for alleged conspiracy. It therefore necessitates examination of such material for ascertainment as to whether it creates a prima facie case to put the petitioner to trial, and applying the same to the offences as defined. 15. Section 373, I.P.C. defines the offence of procuring a minor for the purpose of prostitution or buying a minor for that purpose. Therefore, what we expect from the prosecution is not oniy the alleged procurement of the minor, but also the act of buying by the offender for the purpose of prostitution. 16. The alleged overt acts of other accused would aiso show that they had procured the baby to be given witnesses (trap witnesses) who in unequivocal terms has averred that he had contacted 2nd accused to 6th accused representing that he and his wife are a childless coupie and want to adopt a child. The decoy-Mahesh Singh (CW2) and Bansi Kalappa (CW5) had posed as if they belonged to a respectable family who wanted to adopt a child, having 19 failed to beget a child after marriage. There is no allegation by the prosecution or any assertion by the witnesses that he had offered to purchase a baby from the accused. Therefore, the basic ingredients to constitute that offence are lacking. 17. I have bestowed our concern to the alleged role played by the petitioner herein. According to the prosecution, petitioner in connivance with other accused had been fabricating birth certificates certifying birth of babies in Ideal Nursing Home owned by him. Prosecution has relied on certain birth certificates seized from the hospitai., but it is not In dispute that those documents were subjected to forensic examination. The forensic expert has sent a negative report making it clear that none of the certificates were either in the handwriting of the petitioner or contained his signature. The certificates contain the rubber stamp of the fascimlie signature. 18. The trial court has failed to notice this aspect which is apparent from the prosecution material. The role attributed by the prosecution to the petitioner is, he had in furtherance of the conspiracy with the other accused, I,), 20 created birth certificates and that is used as incriminating material. No doubt birth certificates allegedly seized from the nursing home of the petitioner bear the seal of the nursing home, but not the signature of the accused. That apart, the alleged certificates have been seized not from the person of the petitioner or his possession, but are seized from the office of the nursing home. Therefore to prove the charge for the offence under Section 468, I.P.C., it was necessary for the prosecution to point out that the documents relied by it to raise the charge were concocted. 19. Section 463, I.P.C. defines the offence of forgery which is punishable under Section 465. It reads thus: Section 463. Forgery — [Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage of injury], to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. None of the acts attributed to the petitioner by the investigating officer bring it within the mischief of