Calcutta High Court (Appellete Side)
Ram Joardar vs The State Of West Bengal on 14 November, 2018
Author: Shivakant Prasad
Bench: Shivakant Prasad
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In The High Court At Calcutta
Criminal Miscellaneous Jurisdiction
14.11.18
C.R.A. 210 of 2017
Ram Joardar
-vs-
The State of West Bengal
Mr. Milon Mukherjee
Mr. Suman Chakraborty
... for the appellant.
Ms. Anusuya Sinha
... for the State.
The instant appeal is directed against the judgement and order dated
March 6, 2017 and March 7, 2017 passed by the learned Additional Sessions
Judge, 2nd Court, Krishnagar, Nadia in connection with Session Case No. 1(5) of
2016 (Spl.)/Sessions Trial No. XI(XII) of 2016 thereby convicting the appellant
and another to undergo rigorous imprisonment for two years and also to pay fine
of Rs.1000/- each, in default of payment to undergo rigorous imprisonment for
one month for the offence punishable under Section 3 of ITP Act and also
sentencing the appellant and another to suffer rigorous imprisonment for seven
years and also to pay a fine of Rs.5,000/- each, in default to undergo rigorous
imprisonment for three months for the offence punishable under Section 5 of the
ITP Act each and also rigorous imprisonment for two years and also to pay fine of
Rs.1000/- each, in default of payment of undergo rigorous imprisonment for one
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month for the offence punishable under Section 7 of the ITP Act and directed all
the sentences of imprisonment to run concurrently.
The appellant was placed on trial to answer charges framed for commission
of offence under Sections 3/5/7/8 of the ITP Act in connection with Sessions
Case No. 1(5) of 2016 (Spl.)/Sessions Trial No. XI(XII) of 2016 along with another
person namely Debasish Chakraborty and also with another two accused persons
namely Pradip Mondal and Mahadeb Ghosh against whom charge had been
framed under Section 4 of the POCSO Act.
The prosecution case levelled against appellant shorn unnecessary details
is that on March 2, 2016, a written complaint was lodged by the Inspector, Anjan
Ghosh, C.I of Nakashipara, Nadia to the Officer-in-Charge of Nabadwip Police
Station that as per the instructions of one Sk. Md. Ajim, Deputy Superintendent
of Police, Nadia along with the force held a raid at hotel Raj and seeing the police
party, the hotel Manager, namely, Debasish Chakraborty, escaped through the
back-door and in two rooms they found two boys and two girls and after
prolonged interrogation, they confessed their identities and ages. They stated that
on March 2, 2016, they came to Mayapur Hular Ghat took 2/3 rooms of hotel
Raj and also disclosed their names and identities and after local inquiry, it came
to the light that the hotel Raj is managed by one Debasish Chakraborty, son of
Jayanta Chakraborty and the owner of the hotel is Ram Joardar, son of Late
Nagen Joardar who left full responsibility of the hotel to the manager.
On interrogation, both the boys confessed that they had love affairs with
the girls and they came to the said hotel for having sexual intercourse and both
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the boys were arrested and the victim girls were recovered and seizure was
conducted.
On the basis of the aforesaid complaint of C.I., Nakashipara on March 2,
2016 to the Inspector-in-Charge, Nabadwip Police Station, a case under Sections
3/4/7of the ITP Act, 1968 has been registered for investigation, being Nabadwip Police Station Case No. 80 of 2016 dated March 2, 2016 and on investigation Charge-sheet No. 171 of 2016 dated June 23, 2016 under Sections 3/5/7/8 of the ITP Act, 1968 and Section 6 of the Prevention of Children from Sexual Offences Act, 2012 against the present appellant and three others were submitted before the learned Chief Judicial Magistrate, Krishnagar, Nadia.
The case was committed to the Court of Sessions and in turn it was transferred for trial and disposal by the learned Additional District and Sessions Judge, 2nd Court at Krishnagar, Nadia.
It is a specific case of the appellant that the appellant was not made an accused in course of investigation and the charge-sheet was submitted only against Debasish Chakraborty and two others namely Pradip Mondal and Mahadeb Ghosh but the learned Judge invoking Section 319 of the Code of Criminal Procedure, 1973 issued notice upon Ram Joardar, being the appellant no. 1, to face the charge framed against him and the appellant no. 1 was not made an accused till the stage of issuance of the summon under Section 319 of the Code of Criminal Procedure, 1973. The learned Judge was pleased to frame charges for commission of offence punishable under Section 3/5/7/8 of the ITP Act, 1968 against the appellant and Debasish Chakraborty and Section 4 of the Prevention of Children from Sexual Offences Act, 2012 against two other accused 4 namely Pradip Mondal and Mahadeb Ghosh by an order dated December 22, 2006.
The appellant pleaded not guilty and claimed to be tried. The prosecution in order to establish the said charges examined 15 witnesses and also relied upon documentary evidences which include FIR, Seizure List, Medical Report, 164 statements of the victim girls and after conclusion of the evidence the appellant including other accused persons were examined under Section 313 CrPC to which they declined to adduce any evidence.
Upon conclusion of the trial and after hearing the parties the impugned judgement was delivered by convicting the appellant for the charges framed under Section 3/5/7 of the ITP Act and sentenced them accordingly. However, other two accused persons namely Pradip Mondal and Mahadeb Ghosh were acquitted from the charges under Section 4 of the POCSO Act, 2012.
On being aggrieved by and dissatisfied with the judgement impugned and order of conviction and sentence the appellant has preferred this appeal, inter alia, on the grounds that the learned Judge has misdirected himself in issuing the summon under Section 319 of the Code of Criminal Procedure, 1973, when the prosecution case is being the owner of a hotel, has entrusted upon the Manager to look after the hotel business so the learned Judge ought not to have issued the summon under Section 319 of the Code of Criminal Procedure, 1973.
Mr. Milon Mukherjee learned senior counsel for the appellant submits that proposition of law to exercise Section 319 of the Code has been mechanically 5 invoked implicating the appellant no. 1 in the trial to convict him for the offence in absence of any specific role in continuation of the hotel business.
It is submitted that the learned Judge has failed to appreciate the evidences of PW 4 and 5, the alleged victim girls who did not support the prosecution case and specifically contended that they were engaged in taking food and at the place a hot altercation took place and, thereafter, the police arrested them completely demolishing the prosecution case, but the learned Judge has come to an erroneous conclusion on the basis of surmise and conjectures by convicting and sentencing the appellant.
I do find from the evidence of PW 4 and 5 that they were examined on oath and their statements were recorded under the provisions of Section 164 CrPC but the learned Judge has failed to consider their statements in its right perspective.
The PW 5 and 7 being the parents of the victim girls have also not supported the prosecution case. The learned Judge has also not appreciated the evidence of C.I. of police PW 11, de facto complainant FIR maker and the O.C. Mayapur out post who have contradicted regarding the presence of the Manager in the hotel PW 11 has specifically deposed that after seeing the police party, the Manager of the said hotel fled away and they checked up hotel register and after they held raid at room nos. 2 and 3 of hotel Raj. PW 12 was also present at the place of occurrence and specifically contended that the C.I asked the hotel manager for calling the persons, who took the rooms as per the hotel register. There is material contradiction in the statements of two officers, who were 6 present at the alleged place of occurrence but contradicted themselves regarding the presence of the Manager at the hotel.
The victim girl in her examination before the court has also contradicted the prosecution case but the learned Judge committed an error by relying on the evidence of PW-8 in coming to the conclusion to pass an order of conviction and sentence against the appellant and whereas PW-4, 5 and 8 are consistent to the fact that no signature of the victim were taken.
It is also argued by Mr. Mukherjee that the appellant had transferred the ownership of the hotel by a deed of transfer which fact is evident from the statement of the appellant no. 1 recorded under Section 161 of the Code of Criminal Procedure and also from his defence statement under Section 313 CrPC Moreover, the victim girls were not arrested from the hotel garage rather they were allegedly arrested from a tea stall near Mayapur.
I do find that the proposition of law regarding the proof of offence of Immoral Traffic (Prevention) Act, 1956 has been wrongly construed without proper appreciation of evidence on record solely relying on the statement of the doctor, PW-8 and thereby learned Judge has erroneously came to the conclusion holding the appellant guilty.
It would not be out of the context to note of the fact that the appellant and another Debasish Chakraborty were charged for the offence under Sections 3,5 and 7 of the Immoral Traffic (Prevention) Act, 1956 but they were acquitted of the said charges whereas the accused persons namely Pradip Mondal and Mahadeb Ghosh were acquitted from the charge under Section 4 of the POCSO Act against 7 whom the alleged charge was that 02.03.2016 at 15.05 hours at hotel Raj Balurghat Room No. 2 and 3 under P.S. Nabadwip, District - Nadia had forcibly committed penetration sexual assault on the victim girls.
Mr. Mukherjee adverts my attention to the definition clause in Section 2(a) of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as the "Act") which reads thus-
"2(a) 'brothel' includes any house, room, [conveyance] or place or any portion of any house, room, [conveyance] or place, which is used for purposes [of sexual exploitation or abuse] for the gain or another person or for the mutual gain of two or more prostitutes"
2(f) "Prostitution" means the sexual exploitation or abuse of persons for commercial purposes and the expression" prostitute" shall be construed accordingly."
The charge under Section 3 of the Act provides for punishment for keeping brothel or allowing premises to be used as brothel whereas charge under Section 5 deals with procuring, inducing or taking a person for the sake of prostitution and charge under Section 7 relates to prostitution in or in the vicinity of the public places.
Mrs. Sinha, learned counsel for the State conceded to the submission of the appellant and I do also agree with the said submission that none of the provisions apply in the facts of this case bearing in mind the statement of the victims who have in clear crystal term deposed that both the victims had been to Mayapur for tour and they were engaged in taking food and at that place hot altercation took place thereafter police arrested them and this fact was narrated 8 by the victims in their statements recorded under section 164 of the Code of Criminal Procedure before the learned Magistrate.
The statement of the victims have also not been declared hostile so I am in agreement with Mr. Mukherjee that the statement so made by the victims have to be read as true. From the evidence on oath of PW-4 and 5 and their statements under Section 164 of the Code victims girls cannot be said to have been forced into prostitution or for sexual exploitation or abuse for any consideration since I do not find any iota of offence bringing home any charge against the appellant in this facts and circumstances of the case. Dr. Debraj Biswas, PW 8 had deposed that the victim gave the history before him that she had friendship with another victim who had facebook friend namely Pradip Mondal of Kalna and he brought Mahadeb Ghosh of Kalna and victim met with Mahadeb Ghosh and then went to Raj Hotel and they booked two rooms and they engaged in sexual intercourse on their own will. PW 8 did observe one small aberration on the forechet and opined that victims had sexual intercourse as per the medical reports being Exhibit 8 but the age of the injury was not mentioned so also no foreign body was found on their private parts. Therefore, there are contradictions in the statement of the prosecution witnesses.
Although as per the evidence of Dr. Piu Saha, PW-9 in respect of one of the victims was 15 to 17 years and in respect of another victim the age was between 13 to 15 years as per radiological report, Exhibit 10 but there is no allegation as such against the appellant that he committed such act of penetrative sexual assault.
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The Investigating Officer (in short, "IO"), PW-18 during cross-examination candidly deposed that on due consultation with the document, it was clear crystal to him that the appellant Ram Joardar was no way connected with the offence. IO has also not obtained any report of medical examination to reveal whether the victims were sexually abused or not and he had also not prayed for recording statement under Section 164 of the Code of Criminal Procedure and not examined the owner of the hotel.
In giving an anxious consideration to the facts and circumstances of the case on appraisal of the evidence on record as discussed above, I am persuaded by the argument of Mr. Mukherjee in respect of the application of Section 319 of the Code by the trial Court mechanically implicating the appellant in the trial to convict and sentence him for charges under Sections 3,5 and 7 of the ITP Act.
In this regard, a latest reportable decision of the three Judges Bench of the Hon'ble Apex Court in Labhuji Amratji Thakor & Ors v. The State of Gujarat & Anr. may be referred wherein it has been reiterated that a Court's power under Section 319 of the Code to arraign an accused beyond those named in the Final Report/Charge Sheet should not be mechanically exercised in absence of cogent reasons.
It is clenched position of law on the subject held by the Constitution Bench of the Hon'ble Supreme Court in Hardeep Singh v. State of Pujab & Ors., reported in (2014) 3 SCC 92 relied in Labhuji Amratji Thakor(supra), thus:-
" 6.4. (iv) What is the nature of the satisfaction required to invoke the power under Section 319 CrPC to arraign an accused? Whether the power under Section 10 319(1) CrPC can be exercised only if the Court is satisfied that the accused summoned will in all likelihood be convicted?"
8. Answering the Issue No. (iv) as noted above, in Paragraph Nos. 105 and 106 of the judgement, following was laid down by the Constitution Bench:-
" 105. Power under Section 319 is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence led before the Court that such power should be exercised and not in a casual and cavalier manner.
106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the Court, not necessarily tested on the anvil of cross- examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the Court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if " it appears from the evidence that any person not being the accused has committed any offence" is clear from the words " for which such person could be tried together with the accused". The words used are not " for which such person could be convicted".
There is, therefore, no scope for the Court acting under Section 319 CrPC to form any opinion as to the guilt of the accused."
Therefore, in conclusion I find on plain reading of the provision of offence under Sections 3, 5 and 7 of the Act and also clause of 2(a) and 2(f) of the Act and in consideration of the totality of the evidence particularly on appraisal of the evidence of the victim girls, that there is no iota of evidence to bring home the 11 charges under Sections 3,5 and 7 of ITP Act levelled against the present appellant as he was not in the affairs of the business even considering him to be the owner of the Raj Hotel. Accordingly, I hold that the prosecution has not been able to substantiate the charges levelled against the appellant and is entitled to be acquitted and I hold that for the reasons aforesaid, the impugned judgement of conviction and sentence passed by the learned Additional Sessions Judge, 2nd Court, Krishnagar, Nadia is whimsical and perverse and is liable to be assailed and be set aside.
In the result, the appellant, Ram Joardar is found not guilty of the offence punishable under Sections 3, 5 and 7 of the Act and is acquitted thereof and be set at liberty at once.
The Criminal Appeal No. 210 of 2017 is, thus, allowed.
Let a copy of this judgment together with Lower Court Record be sent down to the learned Trial Court for his information and doing the needful and to follow the cardinal principle of law.
Since the appellant is in jail custody, let an extract of this order be sent to the Superintendent of Correctional Home, Krishnagar, District-Nadia at once for necessary action.
Urgent xerox certified copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Shivakant Prasad, J.) 12 h