Delhi District Court
State vs Aalam on 21 July, 2015
Criminal Revision No.117/14
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
Criminal Revision No. : 117/14
FIR No. : 310/07
Under Section : 3,4,5, & 8 ITP Act and 34 IPC
Police Station : Seemapuri
Unique I.D. No. : 02402R0275202014
In the matter of :-
State
..............Revisionist
VERSUS
1. Aalam
S/o. Sh. Chhutal,
R/o. Juggi, Kalander Colony, Seelampur.
2. Mohd. Raja
S/o. Mohd. Iqbal,
R/o. A-144, Jawahar Park,
Gali No.2, Sahibabad, Ghaziabad, U.P.
3. Manoj
S/o. Sh. Rajpal,
R/o.Village Khera,
G.T. Road, Shahdara, Delhi.
4. Hazira
W/o. Parvez,
R/o. E-59/A-33, Kalander Colony,
Dilshad Garden, Delhi.
5. Chandni
W/o. Rashid,
R/o. E-59/A-33, Kalander Colony,
Dilshad Garden, Delhi.
6. Sonia
W/o. Sh. Rajesh
R/o. E-59/A-33, Kalander Colony,
Dilshad Garden, Delhi.
Page 1 of 7 (Pulastya Pramachala)
Additional Sessions Judge (Shahdara)
Karkardooma Courts, Delhi
Criminal Revision No.117/14
7. Jarina
W/o. Salim,
R/o. E-59/A-33, Kalander Colony,
Dilshad Garden, Delhi.
.................Respondents
Date of Institution : 11.09.2014
Date of receiving the case in this court : 12.09.2014
Date of reserving order : 16.07.2015
Date of pronouncement : 21.07.2015
Decision : Revision is dismissed.
ORDER
1. This revision petition is directed against the order dated 30.05.2014, passed by the trial court, in a case titled as State v. Aalam etc., bearing FIR No.310/07, PS Seemapuri. Vide impugned order, the trial court discharged accused Aalam, Mohd. Raja, Hazira, Chandni, Sonia and Jarina for offences under Section 3,4,5, & 8 ITP Act r/w 34 IPC.
2. Briefly stated, the case set up by prosecution is that on 22/05/2007, SHO PS Seemapuri / Inspector Ishwar Singh received a secret information about prostitution going on in the Jhuggi of accused Hazira, under patronage of Hazira and Aalam. SHO informed ACP about such information and on his instructions prepared a raiding team. Raid was conducted at Jhuggi no. E-59/33A, Kalender Colony, Seemapuri. Ct. Harinder was made a decoy customer and he was given three notes of Rs.100/- under signature of SHO.
3. Ct. Harinder was given instructions to fix a deal and to give signal to the raiding party accordingly. The SHO and other members of raiding party took their position outside the Jhuggi. Ct. Harinder knocked the door of Jhuggi, which was opened by a young boy. They had talked for some time and thereafter constable went inside Page 2 of 7 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.117/14 the Jhuggi and door was closed. After some time, hearing the coughing of Ct. Harinder, raiding team went inside the Jhuggi and they found five ladies and three gents apart from Ct. Harinder. All of them were apprehended by the team. Ct. Harinder told SHO that he had demanded a girl for prostitution from young boy namely Aalam and that young boy Aalam presented accused Chandni and demanded Rs.200/- for prostitution and Rs.100/- as rent of place. Two other accused namely Jarina and Sonia were also present there in close proximity with two other persons. Accused Aalam also pointed out to accused Muskan, who was also available for prostitution. Ct. Harinder fixed the deal for Rs.300/- for accused Chandni and handed over three notes of Rs.100/- to accused Aalam. Accused Aalam hadned over those notes to accused Hazira and thereafter, Ct. Harinder had given signal to raiding team by way of coughing. On personal search of accused Hazira, a red colour purse was recovered containing three notes of Rs.100/-, which were given to Ct. Harinder by the SHO with his signatures. Thus, notes were seized.
4. SHO continued investigation after getting FIR registered and filed chargesheet against all accused persons for offence under Sections 3,4,5 & 8 of ITP Act r/w Section 34 IPC.
ROLE OF ACCUSED :-
5. Aalam : He was tout, who produced girls namely Chandani, Jarina, Sonia and Muskan before Ct. Harinder and took Rs.300/- from him. He handed over Rs.300/- to Hajira.
6. Mohd. Raja and Manoj : Alleged to be customers.
7. Hazira : Allegedly she was running brothel in her jhuggi.
8. The trial court discharged all the respondents except Manoj by Page 3 of 7 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.117/14 relying upon judgement passed by Hon'ble High Court of Delhi in State v. Bashir Ahmed and ors.,23(1983)DLT486. The trial court held that the statement made by accused person to police official was hit by Section 162 Cr.P.C. and therefore, such statement given to decoy police constable was inadmissible in evidence.
9. In view of the same, it was recored by the trial court that there was nothing on record to make out any offence as alleged by prosecution against the respondents, except Manoj.
10. State has challenged the order of discharge on the grounds that the impugned order is not in consonance with legal principles laid down by the Apex court in a catena of case laws. State has also taken ground that the order is inconsistent with the evidence on record and the trial court failed to consider the statement of PWs recorded during the investigation under Section 161 Cr.P.C. It is also pleaded by State that at the stage of framing of charge, the court cannot go into the admissibility of evidence and even otherwise, the trial court wrongly assumed that the statement of prosecution witnesses are hit by Section 162 Cr.P.C.
11. The counsels for the respondents supported the impugned order on the basis of judgment passed in the case of Bashir Ahmed (supra).
12. On the other hand, ld. Addl. PP referred to judgement passed by Hon'ble Supreme Court in Y.E. Nagree v. State of Maharashtra, AIR 1968 SC 147. In this case, a trap was laid against the accused by police officials. A public person (Sheikh) was made decoy, who had talked with the accused and their talk was secretly recorded, which was tendered in the evidence during trial. In the background of these facts, hon'ble Supreme Court held that Sheikh was a Page 4 of 7 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.117/14 police decoy, but the statement of the accused given before him, while making offer of a bribe, could not be regarded as a statement by him to the police nor the words uttered by Sheikh be regarded as a statement to the police. On such reasoning, it was held that the recording of the conversation was not hit by Section 162 Cr.P.C.
13. On the other hand, the facts of Bashir Ahmed (supra) case are similar to the facts of this case. In that case also, on receiving a secret information, a police party consisting constables in plain cloths raided GB Road, Delhi. One constable was made decoy customer and other was made shadow witness. It was alleged that accused stopped the decoy customer and solicited him for prostitution. It was so done in the verandah of the property, which was visible to public. On the signal given by the decoy customer, police apprehended all the accused and chargesheeted them for offences under the same Act. Dealing with such facts, Delhi High Court held that the moment police came into action by receiving information about running of a brothel, the process of investigation was commenced and the statement of accused given to decoy police constable was, therefore, inadmissible under Section 162 Cr.P.C. The court also depreciated the practice of making a police official as decoy customer. The High Court acquitted all the accused persons on the ground that the statement of accused was hit by Section 162 Cr.P.C, which could not be read in evidence.
14. In the present case, as far as the case law relied upon by ld. Addl.
PP is concerned, I find that same is not applicable to the facts of this case because unlike this case, the statement of accused was given to a public decoy person and therefore, there was no Page 5 of 7 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.117/14 situation of statement being made by accused before police official during investigation of the case.
15. On the other hand, the judgment of Bashir Ahmed (supra) is directly applicable to this case, because the same was passed on the appreciation of same facts, which are involved in this case. In fact, the facts of this case are different to only extent that unlike the case of Bashir Ahmed (supra), the talks between accused and police decoy customer had taken place inside a Jhuggi, which was obviously not a public place or a place within sight of public. Furthermore, there was no accosting on the part of accused Chandni, Jarina, Sonia and Muskan. Therefore, even otherwise, the ingredients of Section 8 of the Act were not satisfied in this case. Most importantly, the basis of registration of FIR i.e. the statement of accused Aalam made to decoy police customer i.e. Ct. Harinder is to be treated as barred under Section 162 Cr.P.C. and in that situation, there remains no basis to assume that any offer for prostitution was given by the accused Aalam. Presence of all accused persons inside that Jhuggi in itself cannot be indicative of running of a brothel. Therefore, I find that the impugned order passed by the trial court does not suffer from any illegality, as it is based on a law explained by High Court of Delhi in the case of Bashir Ahmed (supra), which is directly applicable to the facts of this case. State has failed to produce any such law, if delivered by larger bench of Delhi High Court or Supreme Court, which could be applicable to the facts of this case with a different result. Hence, the revision petition is found to be devoid of any merits and is accordingly dismissed. However, from impugned order, I find that the trial court did not pass any order vis a vis Manoj. In view of my Page 6 of 7 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi Criminal Revision No.117/14 forgoing discussion, I find that no case is made out against him as well. Therefore, Manoj shall also stand discharged in this case.
16. Copy of this order alongwith TCR be sent back to the trial court.
17. File of revision be consigned to record room, as per rules.
Announced in the open court (PULASTYA PRAMACHALA) today on 21.07.2015 Additional Sessions Judge (Shahdara) (This order contains seven pages) Karkardooma Courts, Delhi Page 7 of 7 (Pulastya Pramachala) Additional Sessions Judge (Shahdara) Karkardooma Courts, Delhi