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Shila Bhalla Vs. Thakar Bhagwan Dass and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Revn. No. 159-D/- 1964
Judge
Reported inAIR1965P& H384; 1965CriLJ407
ActsSuppression of Immoral Traffic in Women and Girls Act, 1956 - Sections 3, 4 and 17(2); Constitution of India - Article 226; ;Code of Criminal Procedure (CrPC) , 1973 - Sections 491
AppellantShila Bhalla
RespondentThakar Bhagwan Dass and ors.
Cases ReferredR. P. Kapur v. State of Punjab
Excerpt:
.....not be dealt with as a neglected o child under the provisions of this act and if it appears to the board that the child is likely to be removed from its jurisdiction or to be concealed, it may immediately order his removal (if necessary by issuing search warrant for the immediate production of the child) to an observation home''(5) it is clear from the provisions of the above section that to start with the proceedings under this act it is the conscience of the police officer which is to be satisfied with and if he is of the opinion that the child was a neglected child and must be given protection he has to inform the board which he did while putting above-mentioned application. (iii)where the allegations made against accused person do constitute an offence but there in either no legal..........house officer of kotla moubarakpur, was a friend of shri mohan above-mentioned who also threatened shri bhalla, husband of the petitioner, of dire consequences unless he along with his children left the premises. shri bhalla thereafter sent a telegram against the sub-inspector to the higher officers and also approached them personally. thereafter the police tried to manufacture a false case against shri bhalla and his wife shrimati sheela bhalla alleging that they were using saroj for prostitution. accordingly a bogus customer was sent to the premises who paid some money to b. s. bhalla who allowed him and his wife shrimati sheela bhalla to go in another room for sexual intercourse but before they could perform the sexual act police raided the house and arrested the two namely b. s......
Judgment:
ORDER

(1) The facts giving rise to this Criminal revision are briefly as under: Shrimati Shila Bhalla the petitioner in this case, was first married to one Babu Singh, proprietor of a pen manufacturing firm at Kanpur about 14 years back as a result of which they got one daughter named Saroj. Babu Singh died at Baroda about 11 years back. Three years thereafter Shrimati Sheela Bhalla married B. S Bhalla, proprietor of Bhalla Crockery Works, Karol Bagh, New Delhi. Through this wedlock they got two children, namely daughter Kiron aged about 6 years and son Dalip Kumar aged about 4 years. The family was living in a portion of the premises no C 66, Defence Colony, New Delhi the proprietor of which was Shrimati Yashpda Bali whose son-in-law was Shri Mohan. It was alleged that Shri Mohan above-mentioned was an influential person and threatened the petitioner and her husband in this case to vacate the premises otherwise they would be implicated in some case. It is also alleged that Shri Sadhu ram, Station House Officer of Kotla Moubarakpur, was a friend of Shri Mohan above-mentioned who also threatened Shri Bhalla, husband of the petitioner, of dire consequences unless he along with his children left the premises. Shri Bhalla thereafter sent a telegram against the sub-Inspector to the higher officers and also approached them personally. Thereafter the police tried to manufacture a false case against Shri Bhalla and his wife Shrimati Sheela Bhalla alleging that they were using Saroj for prostitution. Accordingly a bogus customer was sent to the premises who paid some money to B. S. Bhalla who allowed him and his wife Shrimati Sheela Bhalla to go in another room for sexual intercourse but before they could perform the sexual act police raided the house and arrested the two namely B. S. Bhalla and his wife Shrimati Sheela Bhalla under section 3/4 of the Suppression of the moral Traffic in Women and Girls Act, 1956. They also took Saroj under their custody. That case is still pending.

At this Shrimati Sheela Bhalla above mentioned filed a write petition No. 13-D of 1962 under S. 491 of the Criminal P. C. and Art. 226 of the Constitution of India for issuing a writ of habease corpus for the production of Saroj in Court and for quashing the order of Shri Virender Parkash, Sub-Divisional Magistrate, New Delhi, who had sent her to Nari Naketan under S. 17(2) of the Suppression of Immoral Trafic in Woman and Giela Act, 1956. That writ petition came up before Tek Chand J. who vide his order dated 7th December, 1962, allowed the same and ordered this Saroj be released by the Superintended, Nari Naketan and handed over to the petitioner, her mother. It is then stated that on 11-7-1963 Shri S. P. Batura, Special Police Officer, Delhi, appointed under the provision of the Suppression of Immoral Traffic in Woman and Girls Act, 1956 applied under S. 14 of the Children Shrimati Sheela Bhalla and B. S. Bhalla were neglected children who were living in brothel, that is with their parents, and there was every likelihood of the girls being forced for prostitution and the male child Dalip being spoiled in the atmosphere. He, therefore, prayed that an enquiry under S. 14 of the Children Act be conducted by the Board appointed for this purpose. On this application, the Board which was constituted of Shri Bhagwan Dass, Magistrate 1st Class, Delhi Shrimati Kanta Jaishi Magistrate 1st Class, Delhi, and Shrimati Niro Bahen, passed the following order on 22-7-1963:--

'MR. AHLUWALLIA NEN AAJ YEH ARZI US 14 CHILDREN ACT MEN PESH KI HEY LIHAZA TEEN BACHON KO BAMAEY WARSAN TALAB KIA JAEY.'

They were ordered to be produced on 2. 8. 196. It is against this order that the petitioner filed an appeal in the Court of Sessions which came up before Shri Udham Singh, Additional Sessions Judge, Delhi, who dismissed the same on the 22nd April, 1964. The petitioner still felt aggrieved and has approached this Court under Ss. 439 and 561-A of Criminal procedure Code read with S. 38 of the Children Act No. 60 of 1960.

(2) The first point raised by the petitioner's counsel was that the impugned order was passed only by Thakar Bhagwan Dass, who was the President of the Board, in the absence of the others. This argument was also raised in the Court of Session but was rightly rejected boy the learned Additional Sessions Judge after giving adequate reasons. It will therefore suffice to say here that the provisions of sub-s (2) of S. 6 of the Children Act are quite clear and the mere perusal of the same would show that the argument is devoid of force altogether. This sub-section runs as under:--

'(2) A Board or Children's Court may cast not-withstanding the absence of any member of the Board or, as the case may be, any Magistrate of the Children's Court and no order made by the Board or Children's Court shall be invalid boy reason only of the absence of any member or Magistrate, as the case may be, during any stage of the proceeding.''

It is clear therefore that to pass valid order under the Children Act it is not necessary that all the members of the Board should be present. The order in this case was passed by Thakar Bhagwan Dass, who was said to be the president of the Board. Moreover, this order was also supported by the other members when all of them signed the summons issued to the petitioners.

(3) The next point urged by the petitioner's counsel was that the order passed boy Tek Chand J. on the 7th December, 1962, allowing the writ petition of the petitioner and releasing Saroj indicated that there was no incriminating evidence against the petitioner bout this argument also is devoid of force because the writ was allowed only on technical grounds as certain statutory provisions, which were mandatory, were not complied with. A part from that the learned Judge specifically stated therein while allowing the write petition that he was induced to pass the order on finding that the requirements of Ss. 16 and 17 (2) of the Suppression of Immoral Traffic in Woman and Girls Act had not been complied with and that any thing stated in that order did not prevent taking subsequent action under that provision if the requirements of the law were satisfied.

(4) Another point urged by the petitioner's some sell was that the complaint which the Deputy Superintendent of Police in this case had made did not given the names of the witnesses which the prosecution wanted to produce and in view of S. 204, Criminal P. C., no summons could be issued against the petitioner,. The learned counsel for the respondents, on the other hand, submitted that the provisions of s. 204, Criminal P. C., did not apply as no offence in the present case had taken place. Moreover, other was a special procedure laid down for deciding the cases under the Children Act. This application was made under S. 14 of the Children Act. It lays down that

' If a person, who in the opinion of the police officer or the authorised person is a neglected child, has a parent or guardian who has the actual charge of, or control over, the child, the police officer or the authorised person may, instead of taking charge of the child, make report to the board for initiating an inquiry regarding that child''.

Sub-section (2) of this section reads as under:--

'(2) On receipt of a report under sub-s. (1), the Board may call upon the parent or guardian to produce the child before it and to show cause why the child should not be dealt with as a neglected o child under the provisions of this Act and if it appears to the Board that the child is likely to be removed from its jurisdiction or to be concealed, it may immediately order his removal (if necessary by issuing search warrant for the immediate production of the child) to an observation home''.

(5) It is clear from the provisions of the above section that to start with the proceedings under this Act it is the conscience of the police officer which is to be satisfied with and if he is of the opinion that the child was a neglected child and must be given protection he has to inform the Board which he did while putting above-mentioned application. When such an application is made then it is for the Board to call upon the parent or the guardian to produce the child before it and show cause why the child should not be dealt with as a neglected child under the provisions of this Act. Under S. 15 of the this Act when such a child is produced before the board it will then examine the police officer or the authorised person who brought the child or made the report and record the substance of such examination and hold the inquiry in the prescribed manner and then pass appropriate orders.

It is true that the High Court in revision may at any time either of its own motion or on application received in this behalf call for the record of any proceeding in which nay competent authority or court of session in which any competent authority or court of session has passed an order for the purpose of satisfying itself as to the legality or property of any such order and may pass such order in relation thereto as it thinks fit. It is also true that the High Court has inherent powers under S. 561-a Criminal P. C. to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the process of any court or otherwise to secure the process of any court or otherwise to secure the ends of justice but for the guidance of the Court the Supreme Court in R. P. Kapur v. State of Punjab AIR 1960 S C 866 has laid down some of the categories of cases where the inherent jurisdiction to quash proceedings can and should be exercised an these are:--

'(i)Where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the office alleged absence of the requisite sanction may for instance furnish cases under this category.

(ii) Where the allegations in the First Information Report or the complaint even if they are taken at their face value and accepted in their entirely do not constitute the offence alleged; in such cases no question of appreciation evidence arised; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not.

(iii)Where the allegations made against accused person do constitute an offence but there in either no legal evidence adduced in support of the case clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is not legal evidence which on its appreciation may or may not support the accusation in question. In execration its jurisdiction under S. 165A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate and ordinarily it would not be open to nay party to invoke the High Court's inherent jurisdiction and contended that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained.

Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under S. 156--A in the matter of quashing criminal proceedings and that is the effect of the judicial decisions on the point.'

(6) In the impugned order only the children are asked to be produced and no more. It will then be for the Board to examine the evidence if necessary and pass appropriate orders. In the Circumstances the present petition has no force and is accordingly dismissed.

(7) Petition dismissed.


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