- (1.) These appeals are filed against the common final judgment and order dated 23.07.2008 passed by the Division Bench of the High Court of Bombay in Criminal Appeal Nos. 476, 603 and 681 of 2006 whereby the High Court allowed the appeals and reversed the judgment dated 18.03.2006 passed by the Additional Sessions Judge for Greater Bombay in Sessions Case Nos. 87 of 2002, 886 of 2004 and 795 of 2005 convicting all the accused under various Sections of the Indian Penal Code (in short 'the IPC'), the Code of Criminal Procedure, 1973 (in short 'the Code') and the Juvenile Justice Act, 2000 (in short 'the JJ Act').
(2.) Brief Facts: (a) In the year 1986, a petition was brought before the High Court of Bombay complaining about the plight of children at various children homes in Maharashtra. In the same petition, the High Court appointed a Committee, namely, the Maharashtra State Monitoring Committee on Juvenile Justice (in short "the Committee") headed by Justice Hosbet Suresh, a retired Judge of the High Court of Bombay. This Committee received some complaints from the Child Rights Organizations like Saathi Online, Childline and CRY about the mismanagement of Anchorage Shelters, and on that basis, the Committee sought permission of the High Court to visit various Anchorage Shelters. After visiting various Anchorage Shelters including the one at Colaba and Cuffe Parade, a report was submitted before the High Court. (b) On the basis of the said report, specifically expressing unconfirmed report of sexual exploitation of children, on 17.10.2001, one Ms. Meher Pestonji telephoned Advocate Ms. Maharukh Adenwala and informed her that some children residing in Shelter Homes were sexually exploited by those who were running these Homes. On receiving this information, Ms. Maharukh Adenwala met those boys, who were allegedly sexually assaulted, at the residence of Ms. Meher Pestonji to ascertain the truth. After confirming the said fact, Ms. Maharukh Adenwala thought it proper to inform it to the Members of the Committee. After consulting the Committee, Ms. Maharukh Adenwala moved a suo motu Criminal Writ Petition No 585 of 1985 before the High Court. On 19.10.2001, the High Court passed an order for the protection of the children at Anchorage Shelter Homes. On 21.10.2001, one Shridhar Naik telephonically contacted Ms Maharukh Adenwala and informed her that the order of the High Court giving protection to the children was being misinterpreted by the police and, therefore, certain clarifications were sought from the High Court and by order dated 22.10.2001, the High Court clarified the same. (c) With regard to the sexual and physical abuse at the Anchorage Shelters, on 24.10.2001, Childline India Foundation filed a complaint with the Cuffe Parade Police Station and while lodging the said complaint, Ms. Maharukh Adenwala was also present there. In spite of the fact that a complaint had been lodged, the police did not take cognizance of the offence under the pretext that the matter was sub judice and was pending before the High Court. Since the matter was not being looked into by the police, Ms. Maharukh Adenwala recorded statements of some of the victims and informed the said fact to the Members of the Committee. On 28.10.2001, Dr. (Mrs.) Kalindi Muzumdar and Dr. (Mrs.) Asha Bajpai met those victims at the office of India Centre for Human Rights and Law and endorsed that the statements previously recorded by Ms. Maharukh Adenwala were correctly recorded. After ascertaining the correctness of the statements by the Members of the Committee, the said facts were placed before the High Court and it was also submitted that the police authorities at Cuffe Parade Police Station were not seriously pursuing the complaint. The High Court, by order dated 07.11.2001, directed the police authorities of the State of Maharashtra to take action on the basis of the complaint lodged by the Childline India Foundation. (d) Based on this specific direction, Sr. Inspector of Police, Colaba Police Station was directed to investigate in detail the complaint lodged by Childline and to take such action as is required to be taken in law. On 12.11.2001, Colaba Police Station recorded the statement of one Sonu Raju Thakur and the statement of one Sunil Kadam (PW-1) was recorded by Murud police station on 13.11.2001. On 15.11.2001, police ultimately registered an offence at Colaba police station by treating the statement of Sonu Raju Thakur as formal First Information Report (in short 'the FIR') being C.R. No. 312/2001 and started investigation. (e) Though the offence was mainly registered against three accused barring William D'Souza (A1), the remaining two accused, namely, Allan John Waters (A2) and Duncan Alexander Grant (A3) had already left the country and therefore, on 05.04.2002, an Interpol Red Corner Notice was issued against A2 and A3. In pursuance of Red Corner Notice, A2 was arrested in USA and sometimes thereafter A3 also surrendered before the Court in India. The Metropolitan Magistrate committed the case to the Court of Session and after committal, it was initially assigned to the First Track Court at Sewree. All the three accused pleaded not guilty and, therefore, claimed to be tried. (f) The Sessions Judge, by judgment dated 18.03.2006, convicted William D'Souza (A1) for the offence punishable under Section 377 read with Section 109 IPC, Sections 120B and 323 IPC and under Section 23 of the JJ Act. Allan John Waters (A2) was convicted under Section 377 IPC, Section 120B read with Section 377 IPC and Section 373 IPC. Duncan Aleander Grant (A3) was convicted under Section 377 IPC, Section 373 read with 109 IPC, Section 372 IPC and Section 23 of JJ Act. (g) Aggrieved by the said order, A1 filed Criminal Appeal No. 681 of 2006, A2 and A3 filed Criminal Appeal No. 476 of 2006 before the High Court of Bombay. State Government also preferred Criminal Appeal No. 603 of 2006 before the High Court for enhancement of the sentence of the accused persons. The High Court, vide its common judgment dated 23.07.2008, set aside the order of conviction passed by the Sessions Judge and allowed the criminal appeals filed by A1, A2 and A3 and acquitted all of them from the charges leveled against them and dismissed the appeal filed by the State Government. (h) Aggrieved by the order of the High Court, Childline India Foundation and Ms. Maharukh Adenwala filed Criminal Appeal Nos. 1208-1210 of 2008 and State of Maharashtra has filed Criminal Appeal No. 1205-1207 of 2008 before this Court by way of special leave petitions.
(3.) Heard Mr. K.V. Vishwanathan, learned senior counsel for the appellants in Criminal Appeal Nos. 1208-1210 of 2008, Mr. Sanjay V. Kharde, learned counsel for the appellants in Criminal Appeal Nos. 1205-1207 of 2008, Mr. Shekhar Naphade, learned senior counsel for Respondent Nos. 1 & 2 in Crl. A. Nos. 1208 and 1210 of 2008 and Respondent Nos. 2 & 3 in Crl. A. No. 1206 of 2008 and Respondent No. 3 in Crl. A. No. 1210 of 2008 and Mr. Rameshwar Prasad Goyal, learned counsel for Respondent No. 1 in Crl.A. Nos. 1209, 1210, 1206 and sole Respondent in Crl. A.No. 1207 of 2008.;