Chattisgarh High Court
Vijay Kumar Barman & Ors vs State Of Chhattisgarh on 15 February, 2017
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Revision No.28 of 2017
Order Reserved on : 20.1.2017
Order Passed on : 15.2.2017
1. Vijay Kumar Barman, S/o Dujeram Barman, aged 38 years, R/o
Parsada, P.S. Hasoud, District Janjgir-Champa (Chhattisgarh)
2. Vikas Sonwani, S/o Firatram Sonawani, aged 29 years, R/o Village
Pirda, P.S. Malkharoda, District Janjgir-Champa (Chhattisgarh)
---- Petitioners
versus
State of Chhattisgarh through Police Station Hasaud, District Janjgir-
Champa (Chhattisgarh)
--- Respondent
For Petitioners : Shri V.C. Ottalwar, Advocate For State/Respondent : Shri Neeraj Sharma, Deputy Government Advocate Hon'ble Shri Justice Anil Kumar Shukla C.A.V. ORDER
1. This revision has been preferred under Section 397 of the Code of Criminal Procedure against the order dated 7.12.2016 passed in Sessions Trial No.183 of 2015 by the 2 nd Additional Sessions Judge, Sakti, District Janjgir-Champa by which the Petitioners have been charged under Section 370(3) read with Section 34 of the Indian Penal Code.
2. Case of the prosecution, as per the charges framed by the Court below against the Petitioners, is that 1 year prior to 20.7.2015, the Petitioners along with one Sandeep Karthiya made a common intention and in furtherance of their common intention they took Aghanbai, Bhuribai, Pooja Barman and other villagers of Village Parsada, Police Station Hasaud, District Janjgir-Champa as also 2 some villagers of nearby villages of the same police station, in total 22 villagers, in installments, without getting their names entered into the Register of Escapists of the Gram Panchayat and without informing the concerned Labour Officer, to Subhang Jalan of Uroplastic Factory, Utright US/A, Qualalumpur, Malaysia by alluring them that they will be given employment in the factory of Malaysia on high wages with medical and other facilities, but the villagers/labourers were not made available any facility there and on their showing unwillingness to work there they were bonded, forced and tortured to work there and thereby the Petitioners committed offence of human trafficking punishable under Section 370(3) read with Section 34 of the Indian Penal Code.
3. Learned Counsel appearing for the Petitioners argued that no case is made out against the Petitioners under Section 370 of the Indian Penal Code. It has not been complained by Complainant Aghanbai that her husband had been forcibly taken to Malaysia and was bonded there to work. Learned Counsel further argued that all the persons who had gone to Malaysia were well acquainted with the first Petitioner and they had gone to work there willingly. The first Petitioner had only made them available assistance for preparation of passport, visa and other certificates/documents. The villagers/labourers had gone to Malaysia according to the contract agreement entered into between the concerned company/employer and the labourers. Since the labourers wanted to return home early, action was taken against the Petitioners on the basis of the complaint made and media news. The villagers/labourers going to Malaysia were fully aware of all the instructions and working conditions of the concerned company/employer. The second 3 Petitioner had no role in this regard except to assist to take the villagers/labourers to Chennai. The first Petitioner himself was employed in Malaysia and he assisted the villagers to go to Malaysia in good faith. The Petitioners are neither contractors nor are they any agent of any company/factory of Malaysia. The Court below failed to appreciate the fact that the Petitioners themselves had funded the entire arrangement of travel to Malaysia for the villagers/labourers and they had also coordinated with Sandeep Karthiya to get jobs for the villagers/labourers. The Petitioners had also placed on record several materials before the Court below in support of their defence including a C.D. showing that the husband of the complainant had actually no problem while working in Malaysia. From the statements of the witnesses recorded under Section 161 of the Code of Criminal Procedure no case is made out against the Petitioners under Section 370(3) of the Indian Penal Code. Therefore, the charges levelled against the Petitioners may be set aside and they be discharged.
4. Per contra, Learned Counsel appearing for the State submitted that an investigation was made by the police on the application submitted to the Collector, Janjgir-Champa by the relatives of the villagers/labourers who had gone to Malaysia. During the investigation, it was found that the first Petitioner along with the second Petitioner and one Sandeep Karthiya had made a common intention and in furtherance of their common intention they took villagers of Village Parsada, Police Station Hasaud, District Janjgir- Champa as also villagers of nearby villages of the same police station, in total 22 villagers, in installments, without getting their names entered into the Register of Escapists of the Gram 4 Panchayat and without informing the concerned Labour Officer, to Malaysia and thereby the Petitioners committed offence of human trafficking punishable under Section 370(3) read with Section 34 of the Indian Penal Code. After taking the villagers/labourers to Malaysia, they were bonded, forced and tortured to work there. The Petitioners took the villagers to Malaysia by alluring them that they will be paid high wages and given medical and other facilities. The first Petitioner had retained with him the bank passbooks and passports of the villagers/labourers. The wages payable to the labourers, who had gone to Malaysia, was being paid to their families through the first Petitioner. Mobile phones of the labourers had also been seized by the first Petitioner. Therefore, from the documents placed on record and the statements of the witnesses recorded, a case under Section 370(3) read with Section 34 of the Indian Penal Code is prima facie made out against the Petitioners. Hence, the instant revision preferred by them deserves to be dismissed.
5. I have heard Learned Counsel appearing for the parties at length and have perused the material available on record carefully.
6. For adjudication of the issue involved in this revision, it would be apt to refer to Sections 227 and 228 of the Code of Criminal Procedure, which run thus:
"227. Discharge.-If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.5
228. Framing of charge.-(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrantcases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of subsection (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."
7. At the stage of framing of charge, the Court is not to see there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion at the initial stage of framing of charge is sufficient to frame the charge and in that event it is not open to say that there is no sufficient ground for proceeding against the accused. At the stage of framing of charge, the Court has to see whether the fact alleged and sought to be proved by the prosecution prima facie discloses the commission of offence on general consideration of the material placed before him by the Investigating Officer. It is only from the available circumstantial evidence an inference of conspiracy is to be drawn. At the time of framing of charge, the Court is not to see whether the accused would ultimately be acquitted or convicted. But, it is 6 the duty of the Court to see whether there is any prima facie case for framing of charge.
8. In State of M.P. v. S.B. Johari and others, AIR 2000 SC 665, the Supreme Court has held that quashment of charge by appreciating the materials produced by the prosecution at the stage of framing of charge is not justified. At the stage of framing charge, the Trial Court is not required to marshal the materials available on record, but only has to prima facie consider whether there is sufficient material against the accused. The Supreme Court held thus:
"4. xxx xxx xxx "From the above discussion it seems well settled that at the Ss. 227 and 228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case."
9. In Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijjaya and others, (1990) 4 SCC 76, the Supreme Court held as under:
"6. xxx xxx xxx "(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the court disclose grave suspicion against the accused which 7 has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence adduced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
10. In Hem Chand v. State of Jharkhand, (2008) 5 SCC 113, the Supreme Court held thus:
"9. It is beyond any doubt or dispute that at the stage of framing of charge, the court will not weigh the evidence. The stage for appreciating the evidence for the purpose of arriving at a conclusion as to whether the prosecution was able to bring home the charge against the accused or not would arise only after all the evidence is brought on record at the trial. The documents whereupon the appellant intended to rely were: (i) an order of assessment passed by the Income Tax Authority and
(ii) his declaration of assets."
11. The Petitioners have been charged under Section 370(3) read with Section 34 of the Indian Penal Code. The relevant provisions of Section 370 of the Indian Penal Code read as follows: 8
"370. Trafficking of person.-(1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports,
(c) harbours, (d) transfers, or (e) receives, a person or persons, by-
First.- using threats, or
Secondly.- using force, or any other form of
coercion, or
Thirdly.- by abduction, or
Fourthly.- by practising fraud, or deception, or
Fifthly.- by abuse of power, or
Sixthly.- by inducement, including the giving
or receiving of payments or benefits,
in order to achieve the consent of any
person having control over the person
recruited, transported, harboured,
transferred or received,
commits the offence of trafficking.
Explanation 1.-The expression "exploitation" shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.
Explanation 2.-The consent of the victim is immaterial in determination of the offence of trafficking.
(2) xxxx xxxx xxxx (3) Where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine."
12. Thus, according to Section 370(1) of the Indian Penal Code, whoever, for the purpose of exploitation, (a) recruits, (b) transports,
(c) harbours, (d) transfers, or (e) receives, a person or persons, by using threats, or using force, or any other form of coercion, or by abduction, or by practising fraud, or deception, or by abuse of power, or by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any 9 person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking. According to the first explanation, the expression "exploitation" shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. According to the second explanation, the consent of the victim is immaterial in determination of the offence of trafficking. Sub-section (3) of Section 370 of the Indian Penal Code says that where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
13. In the instant case, Complainant Aghanbai, wife of Aghoridas has lodged First Information Report (Crime No.107 of 2015) in Police Station Hasaud, District Janjgir-Champa on 26.7.2015 against Vijay Barman (first Petitioner) that Vijay Barman made a common intention with his brother-in-law Vikas Sonwani (second Petitioner) and Sandeep Karthiya and in furtherance of their common intention, they took villagers of Village Parsada, Police Station Hasaud, District Janjgir-Champa as also villagers of nearby villages of the same police station, in total 22 villagers, in installments, without getting their names entered into the Register of Escapists of the Gram Panchayat and without informing the concerned Labour Officer, to Subhang Jalan of Uroplastic Factory, Utright US/A, Qualalumpur, Malaysia by alluring them that they will be given employment in the factory of Malaysia on high wages with medical and other facilities, but the villagers/labourers were not 10 made available any facility there and on their showing unwillingness to work there they were bonded, forced and tortured to work. The charges levelled in the FIR are corroborated by the statements of the witnesses recorded by the police under Section 161 of the Code of Criminal Procedure. One of the witnesses Shankarlal Mahilange has stated in his statement under Section 161 of the Code of Criminal Procedure that they were first taken to Kolkata and after staying at Kolkata for 5 days they were taken to Chennai and thereafter to Malaysia. Vijay Barman (first Petitioner) had handed over Shankarlal Mahilange and other villagers/labourers to his brother-in-law Vikas Sonwani (second Petitioner) for looking after the villagers/labourers. Vikas Sonwani and Sandeep Karthiya had taken the villagers/labourers from Kolkata to Chennai and thereafter from Chennai to Malaysia by air (flight). Vijay Barman met the villagers/labourers in Malaysia. He got them employed in Uroplastic Factory of Subhang Jalan, Utright US/A, Qualalumpur, Malaysia. According to witness Shankarlal Mahilange, they were total 22 labourers, who were taken to Malaysia. They were told that wages of Rs.30,000 - 40,000 would be paid to them for working in the factory in Malaysia, which was not paid to them. On their falling ill, they were not provided proper medical treatment. They were forced to work in the factory even in their ill condition. Their mobile phones were seized from them and retained. On being complained, Vijay Barman threatened them. They were being forced to work for 12 hours. On intending to return home (India), Vijay Barman was demanding a sum of Rupees Two Lakhs more and they were not being allowed to return from Malaysia. They returned their homes in India on making complaint by their family members at Janjgir (Chhattisgarh), 11 registration of a crime thereon and by the efforts of the Government of Chhattisgarh. Thus, from the above evidence of the prosecution, it is apparent that the villagers/labourers were taken to Malaysia and kept there as bonded labourers, their bank passbooks, passports, mobile phones etc. were seized from them and they were tortured and forced to work there.
14. From perusal of the material available on record, it reveals that 3 passbooks, 1 cheque-book of State Bank of India, Branch Jaijaipur (Chhattisgarh), 2 passbooks of Gramin Bank, Branch Hasaud (Chhattisgarh), 12 passports, hard disc of Sony make with one cable, currencies of Thailand, agreement on stamp paper, 12 stamp papers each in two copies used as agreements with first Petitioner Vijay Barman, 12 bank deposit accounts of Vijay Barman, two stamp papers each of Rs.100/- used as agreement with Vijay Barman, 13 copies of Visa of Malaysia, a black mobile of Oppo make, 5 copies of letter head of Malaysia, other documents of 148 pages, forged mark-sheets of Xth and XIIth Standards in the name of Vijay Barman, one printer, one mouse, one keyboard, one register containing the names of villagers/labourers of Village Parsada, who had gone to Malaysia and 16 copies were seized from first Petitioner Vijay Barman. 1 register, 6 copies regarding transactions done with the villagers/labourers of Village Parsada who had gone to Malaysia and 1 mobile of Nokia make were seized from second Petitioner Vikas Sonwani. 1 photo copy of an appointment letter, permission letter of the Government of Malaysia, photo copy of licence of the Government of Gujarat, three copies of professional tax paid, Government tax paid and licence, work agreement, demand letter of 13 labourers, salary 12 agreement, acknowledgment of submission of passport, permission letter of Government of India, request letter and copy of Visa were seized from Sandeep Karthiya.
15. Thus, from the documents produced by the prosecution, the FIR, the statements of witnesses recorded under Section 161 of the Code of Criminal Procedure etc., a case under Section 370(3) read with Section 34 of the Indian Penal Code is prima facie made out against both the Petitioners and Sandeep Karthiya. Therefore, the charge framed against both the Petitioners under Section 370(3) read with Section 34 of the Indian Penal Code appears to be sustainable in the eyes of law. The impugned order dated 7.12.2016 passed by the Court below framing charge against the Petitioners under Section 370(3) read with Section 34 of the Indian Penal Code, even in the light of the judgments of the Supreme Court referred to above, does not warrant any interference by this Court.
16. Consequently, the instant criminal revision is dismissed. Keeping in view the rising number of cases relating to human trafficking in this State, the Additional Sessions Judge is directed to conclude the trial of the Petitioners as early as possible, preferably within a period of three months from the date of receipt of a copy of this order.
17. Record of the Court below be sent back along with a copy of this order within ten days from today.
Sd/-
(Anil Kumar Shukla) JUDGE Gopal