Allowed

Smt. Helen Fernandes E Pereira v. State through Pp

Bombay HC19 Jan 2010CRIR/55/2009

Case brief

AI extract

What is this about?

Criminal Revision Application where the petitioner challenged the framing of a charge for child trafficking under the Goa Children's Act, 2003. The court held the charge unsustainable as the petitioner merely introduced a complainant to her sister without knowledge of the child's minority.

What did the court decide?

Impugned order directing framing of charge quashed; Applicant discharged from Special Case no. 9/09 to Goa Children's Court.

Smt. Helen Fernandes E Pereira Vs State through Pp — Bombay HC (2010) — LawSathi Research

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IN THE HIGH COURT OF BOMBAY AT GOA

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CRIMINAL REVISION APPLICATION NO. 55 OF 2009

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SMT. HELEN FERNANDES E PEREIRA ... Petitioner Versus STATE THROUGH PP ... Respondent

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Mr. Arun Bras De Sa, Advocate for the Applicant. Mr. C. A. Ferreira, Public Prosecutor for the State/Respondent.

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Coram:R. M. SAVANT, J. Date:19th January, 2010

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P.C.

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By this Criminal Revision Application, the Applicant takes exception to the Order dated 11.09.2009 passed by the learned President of the Children's Court, State of Goa, by which Order, the charge came to be framed against the Accused for offences punishable under Section 323 of the I.P.C. read with Section 8(2) and Section 8(9) of the Goa Children's Act, 2003. The Applicant herein is the accused no.1 in the said case.

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The prosecution case is that one Nirmala Chari, working at Calangute, who disclosed that earlier she was working for Tourism Department for a period of three years, after the death of her husband, she met one lady Police by the name Helen i.e. the Applicant abovenamed, who was working at the Calangute Beach in white uniform. The said Helen inquired with her as to whether there is anyone who is there to work in the house, upon which, the said Nirmala disclosed that her daughters will work. Accordingly, Helen told her to bring her daughters on the next day. The said Nirmala brought her daughter, aged 13 years and met Helen at about 10.30 hours at Calangute beach. At that time, the said Helen was

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accompanied by her sister Olga and her children and it was told to the said Nirmala that the said Olga is in need of one domestic help to look after her children. At that time, Olga handed over to her Rs.500/- and asked her to come to Altinho, Panaji. The said Nirmala then disclosed that thereafter, around 14.00 hours, the said Olga called the victim girl and took her with them to Altinho in her vehicle. After about one week, the said Nirmala contacted her daughter, the victim girl, on phone who was staying in the house of Olga. Subsequently, on account of the ill treatment by the said Olga to the victim girl in her flat at Altinho, a complaint was filed by the said Nirmala with the Women Police Station, Panaji, for offences punishable under Section 323 read with Section 34 I.P.C., Sections 7(5)(c), 8(2) and 8(9) of the Goa Children's Act 2003 and Section 23 of The Juvenile Justice (Care and Protection of Children) Act, 2000.

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As can be seen from the FIR, the only role attributed to the Applicant abovenamed is by way of introduction of the complainant's daughter to the Accused no.2. No other overt act has been attributed to her which would come within the sweep of the provisions of the Goa Children's Act, 2003. The Accused no.1 has been roped in and the charge has been framed against her on the ground that it was the duty of the Accused no.1 to disclose to the Complainant that the minor child cannot be kept as domestic help and instead of so disclosing, she took part in the said recruitment of the minor and, therefore, it was covered under Section 2(z), which deals with child trafficking. The statement does not disclose in any manner that the Accused no.1 was aware that the victim girl who was kept at the residence of the said Olga was a minor. In fact, by an ossification test that was carried out, it was proved out that the victim girl was a minor. The Applicant had merely introduced the said Nirmala to her sister Olga oblivious of the fact that the said victim girl was a minor, the Accused at the best can be said to have tried to help her sister in

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finding a domestic help. It was for the Accused no.2 to find out whether the said victim girl was a minor and whether she could employ her. As indicated above, there is absolutely no incriminating material on record against the Accused no.1 except the introduction of the Complainant and victim girl to her sister Olga who is the Accused No.2.

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Applying the test as laid down by the Apex Court in the judgment reported in AIR 1979 S.C. 366, in the matter of Union of India vs. Prafulla Kumar Samal, in my view, charge could not have been framed against the Applicant. In that view of the matter, the above Criminal Revision Application would have to be allowed and the impugned Order dated 11.09.2009, in so far as it directs the framing of the charge against the Applicant abovenamed, would have to be quashed and set aside and is accordingly quashed and set aside.

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Resultantly, the Applicant would stand discharged from Sp. Case no. 9/09, pending in the Children's Court at Goa.

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R. M. SAVANT, J.

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Smt. Helen Fernandes E Pereira v. State through Pp

Case brief

What is this about?

What did the court decide?

Smt. Helen Fernandes E Pereira v. State through Pp

Case brief

What is this about?

What did the court decide?

What the court decided

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