Telangana High Court
Cheguri Sampath Kumar vs State Of Telangana on 22 April, 2022
Author: Lalitha Kanneganti
Bench: Lalitha Kanneganti
THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
CRIMINAL PETITION No.9402 of 2021
ORDER:
This Criminal Petition under Sections 437 and 439 Cr.P.C., is filed by the petitioner-A.3 in Crime No.364 of 2021 on the file of Ameenpur Police Station, Sanga Reddy District, registered for the offences punishable under Section 370(A)(2) of the Indian Penal Code, 1860 (for short "IPC") and Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 (for short "ITP Act").
2. The case of the prosecution is that on 11.11.2021 at 1630 hours on receipt of information about prostitution is running at Sridham Colony, Bandkamkommu, Ameenpur, the Sub Inspector of Police and his staff went there and apprehended one male person and three women and brought them to police station, where the petitioner stated that he got acquaintance with A.1 and A.2, who asked him to come to More Market, Ameenpur. Then he went there on his bike, met A.1 and A.2 paid Rs.3,000/- by Google Pay for having sex with woman. After taking money, they sent him to one room, at that time, police caught hold of them. Basing on the complaint, the above crime was registered and petitioner is arrayed as A.3. 2
LK, J Crl.P.No.9402 of 2021
3. This Court by order dated 17.12.2021, has granted bail to the petitioner and while granting bail, this Court has directed the concerned Investigating Officer to file a counter as to why the procedure contemplated under Section 41-A of Cr.P.C. and the guidelines issued by the Hon'ble Apex Court in Arnesh Kumar v. State of Bihar1 were not followed and also directed the learned Magistrate, who authorized remand of petitioner, shall file a detailed report with relevant material, explaining the reasons for authorizing such remand.
4. Pursuant to the same, the learned Magistrate has submitted a report stating that after satisfying with the checklist provided by the Investigating Officer, remanded the accused. The reasons for remand mentioned are as follows:
1. If the accused person will be released on bail, he may abscond from the residing place and may commit another such type of offence. Unless the accused arrested his presence in the court whenever required cannot be ensured.
2. For preventing of accused from committing similar offence in future.1
(2014) 8 SCC 273 3 LK, J Crl.P.No.9402 of 2021
3. To prevent the accused from making any inducement, threat of promise to person acquainted with the fat of the case so as to dissuade him from disclosing such facts to the court.
4. If the accused is not arrested, there is every possibility and reasonable apprehension that he may escape from the locality to avoid court procedure, as such the arrested accused is being produced before the Hon'ble Court for judicial remand.
It is stated in the report that apart from the reasons mentioned for remanding accused No.3, the learned Magistrate has perused the statement of the victim which shows that she belong to Assam State and her friend by name Monika brought her to Hyderabad. Further the victim was transported from Hyderabad to Ameenpur and handed over to A.1 and A.2. As per the contents mentioned in remand application, Section 161 Cr.P.C. statements of witnesses, F.I.R. and the confessional panchanama of accused No.3, accusation is prima facie made out against accused No.3 for the offence under Section 370 IPC. As per Section 370 sub section (2) IPC, whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to pay fine. It is further stated that the case falls under Section 370 IPC and the arrest of the accused by the police is justified for the reasons mentioned by the investigating 4 LK, J Crl.P.No.9402 of 2021 officer in remand application. Further it is stated that this is a case of flesh trading. Victims are beguiled into this trade by playing deception of by taking advantage of their economic status. Has there been no person to exploit victim like accused No.3 in present case, there would be no fresh trading. Such a trade to nip in the bud. This Court cannot measure the damage it does to society by giving nelson eye to such overt acts of accused and release them at the threshold. It is further stated in the report that "since the punishment prescribed for the alleged offence against accused No.3 is found to be up to 10 years under Section 370(2) IPC and the matter is triable by Court of Sessions and the accusations are prima facie made out against him, I found it justifiable to remand accused to judicial custody, more particularly in view of the facts that the offence alleged is heinous one of flesh trading and that accused Nos.1 and 2 were absconding, and if accused No.3 was released, he may alert absconding accused. Thus, I accepted the remand for further detention of accused in this case keeping in mind the guidelines issued by Hon'ble Apex Court in Arnesh Kumar v. State of Bihar."
5. A counter affidavit is filed by the Investigating Officer. It is stated in the counter-affidavit that as per the evidence, it is crystal clear that accused Nos.1 to 3 have committed the offences punishable under Sections 370 and 5 LK, J Crl.P.No.9402 of 2021 370(A)(2) IPC and Sections 3, 4 and 5 of PIT Act. It is stated that once FIR was registered under Chapter-XII of the Code of Criminal Procedure, the investigation is required to be carried out as per the mandate laid down in the said Chapter. Section 41-A Cr.P.C. will come into play only in the event of arrest of the person is not required under the provisions of sub section (1) of Section 41 of the Code of Criminal Procedure. It is relevant to submit that existing provision of Section 41 was amended by way of substitution through Act No.5 of 2010 by incorporating Section 41(1)(a)(b)(ii) and Section 41-A. Hence, the Apex Court was also pleased to refer the said amended provisions in the said judgment. If the conditions are satisfied as provided under the said amended Rule, the accused persons may be required to be arrested. The power as available under the statute was exercised in a bonafide manner and the same cannot be portrayed as non-compliance of the orders of the Hon'ble Supreme Court by misapplying the ratio of the judgment of the Apex Court. The nature of the offence is flesh trade, where the victims are being trafficked and sexually exploited. Moreover the sex trafficking is serious crime and volition of human rights, where the victim in the above case is imported from other State and a crime as is understood creates a dent in law and order situation. In a civilized society, crime disturbs orderliness it affects the peaceful life of the society and moreover to 6 LK, J Crl.P.No.9402 of 2021 curb the menace Section 370(A) was also brought into existence, further the accused was caught red handed and as such his arrest was necessary in order to prevent him from absconding and also inducing or threatening the victim and secure his presence in the Court. It is stated that the respondent officer never violated the guidelines issued by the Hon'ble Apex Court in the case of Arnesh Kumar v. State of Bihar at the time of remanding the accused.
6. This Court has asked for a report from the learned Magistrate why he has failed to comply with the guidelines issued by the Apex Court in Arnesh Kumar's case supra when the punishment prescribed for the offence under Section 370(A)(2) IPC is rigorous imprisonment for a term which shall not be less than three years, but which may extend to five years. The learned Magistrate in his report stated that 'as per the contents in the remand application, Section 161 Cr.P.C. statements of witnesses, F.I.R. and the confessional panchanama of accused No.3, I found accusation is prima facie made out against accused No.3 for the offence under Sections 370 IPC. As per Section 370 sub section (2) IPC, who ever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years and shall also be liable to fine." It appears that the learned Magistrate failed to understand which provision of law attracts to the 7 LK, J Crl.P.No.9402 of 2021 accused when it is the case of the prosecution that the petitioner is a customer and in that case Section 370(2) IPC has no application.
7. It is appropriate to have a look at Sections 370 and 370-A(2) IPC, which reads thus:
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). Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine.
(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. 8
LK, J Crl.P.No.9402 of 2021 (4) Where the offence involves the trafficking of a minor, 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.
(5) Where the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than fourteen years, but which may extend to imprisonment for life, and shall also be liable to fine. (6) If a person is convicted of the offence of trafficking of minor on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. (7) When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
Section 370-A Exploitation of a trafficked person. (1) ...
(2) Whoever, knowingly by or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a terms which shall not be less than three years, but which may extend to five years, and shall also be liable to fine.
8. As per the allegation, the petitioner is a customer and only Section 370A(2) IPC attracts against him and the punishment is rigorous imprisonment for a term which shall not be less than three years, but which may extend to five years, and shall also be liable to pay fine. Thus, the leaned Magistrate has failed to exercise his discretion and also failed to 9 LK, J Crl.P.No.9402 of 2021 follow either the provisions of IPC or the guidelines issued by the Apex Court in Arnesh Kumar's case supra.
9. In the report, the learned Magistrate stated that "since the punishment prescribed for the alleged the offence against accused No.3 is found to be up to 10 years under Section 370(2) IPC and the matter is triable by Court of Sessions and the accusations are prima facie made out against him, I found it justifiable to remand accused to judicial custody, more particularly in view of the facts that the offence alleged is heinous one of flesh trading and that accused Nos.1 and 2 were absconding, and if accused No.3 was released he may alert absconding accused. Thus, I accepted the remand for further detention of accused in this case keeping in mind the guidelines issued by Honorable Apex Court in Arnesh Kumar vs State of Bihar."
10. In the remand report also when the police has specifically stated that the offences alleged against the petitioner is under Sections 370 and 370(A)(2) IPC and Sections 3, 4 and 5 of PIT Act, but the learned Magistrate has recorded the offences as 370 and 370-A IPC and Sections 3,4 and 5 of PITA Act. The learned Magistrate should be conscious and careful while remanding and whatever the offence is, the learned Magistrate is bound by the provisions of the Code of Criminal Procedure, IPC and the precedents. He cannot go beyond that. In this case, the petitioner is not 10 LK, J Crl.P.No.9402 of 2021 trafficking the woman, he is a customer and if he is proved to be guilty, he will be punished for the alleged offence. The Hon'ble Supreme Court in Arnesh Kumar's case observed that "the power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner. Before a Magistrate authorises detention under Section 167 Cr.P.C. he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest under Section 41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused. The Magistrate before authorising detention will record its own satisfaction, may be in brief but the said satisfaction must reflect from its order. It shall never be based upon the ipse 11 LK, J Crl.P.No.9402 of 2021 dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement etc., the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording its satisfaction in writing that the Magistrate will authorise the detention of the accused. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant and secondly a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny."
11. While remanding the accused, it appears that the learned Magistrate has failed to exercise the discretion judicially. The learned Magistrate ought to have been more cautious while remanding the accused and ought not to have taken into consideration the stereotypic reasons. When the learned Magistrate was asked to submit a report by a superior Court of the State, he 12 LK, J Crl.P.No.9402 of 2021 should have more careful, but in a very casual manner, without evening looking at the sections and the offence, which provision of IPC attracts, he has submitted report to this Court stating that the punishment is upto 10 years for the offence under Section 370(2) IPC. The learned Magistrate is supposed to make a judicial scrutiny whether specific reasons have recorded for arrest, such reasons are relevant and the police officer has reached at a reasonable conclusion that the stated reasons are attracted. In this case, the learned Magistrate failed to make the judicial scrutiny as required and authorised the detention.
12. Hereafter, the learned Magistrate shall be careful in implementing the guidelines issued by the Apex Court in Arnesh Kumar's case and shall follow it scrupulously. This is a fit case, where the matter has to be referred to the Hon'ble Chief Justice for taking action on the departmental side. The learned Magistrate is cautioned to be careful hereafter. Taking a lenient view, this Court is not referring the matter to be placed before the Hon'ble Chief Justice for taking action on departmental side. As far as the Investigating Officer is concerned, he is not able to give satisfactory reasons in the counter-affidavit filed before this Court. The petitioner has not been involved any human trafficking and he is a customer, but still he was remanded when the punishment is for the alleged offence is up to seven 13 LK, J Crl.P.No.9402 of 2021 years and he has also not complied the guidelines issued by the Apex Court in Arnesh Kumar's case supra. As a last opportunity, cautioning him, no departmental action is contemplated by this Court or the suo moto contempt proceedings. The Investigating Officer shall follow the law and the guidelines issued by the Apex Court in Arnesh Kumar's case supra.
13. The criminal petition is, accordingly, closed. The Registrar (Judicial) is directed to communicate the copy of the order to the learned Principal Junior Civil Judge-cum-Judicial Magistrate of First Class, Sangareddy, as well as to the Investigating Officer.
Miscellaneous applications pending, if any, shall stand closed.
_________________________ LALITHA KANNEGANTI, J Date : 22.04.2022 mar