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State vs . Hamid Khan & Ors. on 8 July, 2013

IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS
JUDGE, (SPECIAL FAST TRACK COURT), EAST, NORTH EAST
 & SHAHDARA DISTRICTS, KARKARDOOMA COURTS, DELHI

SC No.177/13
Unique Case I.D. No.02402R085642013

                                    Date of Argument :05.07.2013
                                    Date of Order    :08.07.2013

                                             FIR No.:414/12
                                               PS:Shahdara
                     U/s 365/368/328/323/344/376/506/34 IPC

                  State Vs. Hamid Khan & Ors.

ORDER ON CHARGE


            The facts of the prosecution case in brief are
that on 21.12.2012 ---------------X----------- s/o           -------X1------
R/o       --------------------------X2----------------------------------------
lodged a report at P.S. Shahdra alleging that his daughter
--------Y------- aged about 18 years was missing since
15.10.2012

. She did not return from her Bharti Mahila School. On the basis of his report a Missing Person Report No. 60 on 21.12.2012 was recorded at P.S. Shahdara. On 27.12.2012 FIR No. 414/12 u/s 365/368/328/323/344/376/506/34 IPC was recorded at P.S. SC No. 177/13 State vs. Hamid Khan & Ors. Page No. 1/11 Shahdara on the basis of written complaint of ---------Y-------- in which she alleged that she was a student of class 9 of Bharti Mahila School. A lady Farida was residing in her neighbourhood who used to have conversation with her off and on and told her that she was not interested/interested in studying). She offered her a job. She told that her parents will not agree for that. Farida told her that when she would bring money after earning the same then her parents would be happy. She was convinced and accordingly on 15.10.2012 she left her school with Farida without telling anything to her parents. A boy named Javed @ Lucky was also with her. They took her to Mandawali, Delhi where she was kept for three days and thereafter she was taken to Jaipur by Lucky where she was kept in a house at Malviya Nagar. Some more girls were also staying there. Some of the boys who were staying in that house took her to Green Villa Hotel near Mansarovar Riddi Siddi and she was compelled to do wrong act. She was brought back in the same house. She and other girls were not allowed to go anywhere. Eight boys who were staying in the same house were keeping watch on them and not allowing any of the girl to go out. The girls used to be taken to the hotel turn by turn for wrong act. In the SC No. 177/13 State vs. Hamid Khan & Ors. Page No. 2/11 meantime, she made a telephonic call to her parents and told them that she was alright. About 1-1/2 months ago the police conducted a raid on that house and that boy Lucky brought her to Sahibabad for about a week and thereafter she was again brought to Jaipur where she was kept in a house at Pratap Nagar and she was forced to do wrong act. On previous day i.e. 26.12.2012 she succeeded in returning to her house at Delhi and gave her complaint against Farida, Javed and their other associates who kidnapped her to Jaipur and made her to do wrong act. She was taken to GTB Hospital where she was medically examined and her MLC and continuation sheet were prepared. Accused Farida was arrested from her house No. 276, Takia Gullu Shah, M.S. Park, Shahdara, Delhi on the same day i.e. 27.12.2012. She was interrogated and her disclosure statement was recorded. She was taken to Jaipur on 28.12.2012 and her pointing out memo after showing Pratap Nagar house was prepared. Accused Sushil Kumar and Hamid Khan were arrested from MIG-A, Pratap Apartment No. 1066, 10th Floor, Sector-29, Pratap Nagar, Jaipur, Rajasthan. The arrest memo and personal search memo were prepared. They were interrogated and their disclosure statements were recorded. They were brought SC No. 177/13 State vs. Hamid Khan & Ors. Page No. 3/11 to Delhi. Their two days police remand was taken. The IO obtained another application/statement of prosecutrix

--------Y-------- dated 31.12.12 (incorrectly mentioned as 13.12.13), and prosecutrix was produced before Ld. M.M. Her statement u/s 164 Cr.P.C. was recorded on 02.01.2013. After recording of statements of other witnesses and after completion of investigation police filed a charge sheet for trial of accused for the offences punishable u/s 365/366/368/323/344/376/506/34 IPC.

2. I have heard arguments on charge and perused file.

3. It has been argued on behalf of Ld. Defence Counsel for accused Hamid Khan that charge against him u/s 344 IPC is only made out and there is no sufficient material against him for framing of charge for the offences punishable u/s 365/368/328/323/376/506/34 IPC.

4. It has been argued on behalf of Ld. Defence Counsel for accused Farida that there is no sufficient material against him for framing of charge for any offence.

5. It has been argued on behalf of Ld. Defence Counsel for accused Sushil Kumar Tiwari that charge against him u/s 344 IPC is only made out and there is no sufficient material against him for framing of charge for the offences punishable u/s 365/368/328/323/376/506/34 IPC.

6. Ld. Defence Counsels for all the accused persons also submitted that the prosecutrix attended her school upto 27.11.2012 and there are documents on judicial file on that aspect. If the prosecutrix attended school upto 27.11.2012, how could she be kidnapped or abducted on 15.10.2012. Besides, there is long delay in lodging the missing report of the prosecutrix by her father as the missing report was filed only on 21.12.2012. In addition to the prosecutrix gave different versions at different stage of investigation.

7. On the other hand, it has been argued on behalf of Ld. Addl. P.P. for the state that there is sufficient material against accused Farida to frame charge against her for the offences punishable u/s 329/365/366/368/328/109/376 IPC & Section 3 & 5 Immoral Traffic (Prevention) Act, 1956 and against accused Hamid and Sushil for the offences punishable SC No. 177/13 State vs. Hamid Khan & Ors. Page No. 5/11 u/s 347/329/109 IPC & Section 3 & 5 Immoral Traffic (Prevention) Act, 1956. She further submitted that besides above offences, charge against all the three accused for the offence punishable u/s 120-B IPC may also be framed as all the accused committed the offences by hatching a criminal conspiracy.

8. It would be appropriate to reproduce provisions of Sections 4 & 5 of the Immoral Traffic (Prevention) Act, 1956 and Section 120-A, 120-B, 365, 366 and 368 IPC which run as follows:

"Section 4: Punishment for living on the earnings of prostitution - (1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of any other person shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both and where such earnings relate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of not less then seven years and nor more than ten years. ***"

Section 5: Procuring, inducing or taking person for the sake of prostitution -

(1) Any person who -

(a) procures or attempts to procure a person, whether with or without his consent, for the purpose of prostitution; or

(b) induces a person to go from any place, with the intent SC No. 177/13 State vs. Hamid Khan & Ors. Page No. 6/11 that he may for the purpose of prostitution become the inmate or, or frequent, a brothel; or

(c) takes or attempts to take a person or causes a person to be taken, from one place to another with a view to his carrying on, or bring brought up to carry on prostitution; or

(d) causes or induces a person to carry on prostitution, shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment of a term of fourteen years;***"

"Section 120-A IPC: Definition of criminal conspiracy. - When two or more persons agree to do, or cause to be done,- an illegal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation.-It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object".

"Section 120-B IPC: Punishment of criminal conspiracy-

(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence***".

"Section 329 IPC: Voluntarily causing grievous hurt to extort property, or to constrain to an illegal act. - Whoever voluntarily causes grievous hurt for the purpose of extorting from the sufferer or from any person interested in the sufferer any property or valuable security, or of constraining the sufferer or any person interested in such sufferer to do anything that is illegal or which may facilitate the commission of an offence, shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

"Section 365 IPC: Kidnapping or abducting with intent secretly and wrongfully to confine person.-Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine".

"Section 366 IPC: Kidnapping, abducting or inducing woman to compel her marriage, etc. - Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid".

9. My attention goes to a case Union of India Vs. Prafulla Kumar, AIR 1979 SC 366 (1) wherein the Apex Court observed that:

"10. Thus, on a consideration of authorities mentioned above, the following principles emerge:

(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 has not been properly explained, the Court will be fully justified in framing a charge and proceedings with the trial.

(3) The test of 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 produced 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 court 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. Thus, the court at the time of framing of charge as provided under Section 227 of the Cr.P.C., has to see the SC No. 177/13 State vs. Hamid Khan & Ors. Page No. 9/11 material to enable it to decide prima facie whether Court should proceed with trial or not. At this stage, the Court is not to scan evidence as if it is to acquit or convict the accused. Truth, veracity and effect of evidence are not to be judged at the stage contemplated by section 227 of the Cr.P.C. Absence of ground for proceeding against the accused means absence of a prima facie case, the Court may sift evidence to see whether ingredients of the alleged offences are in existence or not? Where there is a strong suspicion existing at the initial stage which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient ground for proceeding against the any of the accused. Thus, it is crystal clear that at the time of forming an opinion on the point of charge, the Court has to form a prima-facie opinion of the matter. No meticulous assessment of evidence is permissible at that juncture.

11. In a case Vijayan v. State of Kerela, 1999(3) SCC 54: AIR 1999 SC 1086, it was held that to bring home the charge of conspiracy within the ambit of section 120B it is necessary to establish that there was an agreement between SC No. 177/13 State vs. Hamid Khan & Ors. Page No. 10/11 the parties for doing an unlawful Act. It is difficult to establish conspiracy by direct evidence.

12. On considering the material on record in the form of report, statements of witnesses recorded u/s 161 Cr.P.C., MLC, etc. and in the light of principles of law laid down in Union of India Vs. Prafulla Kumar, (supra) and Vijayan v. State of Kerela, (supra), I am of the view that there is prima facie sufficient material which raise grave suspicion against all the accused that they may have committed offences punishable under Section 4 & 5 Immoral Traffic (Prevention) Act, 1956 & u/s 329/344/346/365/366/368/120B/109/376 IPC. Let charge against all the accused for offences punishable under Section 4 & 5 Immoral Traffic (Prevention) Act, 1956 & u/s 329/344/346/365/366/368/120B/109/376 IPC be framed accordingly.

Announced in the Open Court on 08th July, 2013 (DR. T.R. NAVAL) Additional Sessions Judge, (SFTC) Karkardooma Courts, Delhi SC No. 177/13 State vs. Hamid Khan & Ors. Page No. 11/11