Gujarat High Court
Chimanbhai Kangibhai Parmar vs State Of Gujarat on 7 July, 2015
R/CR.RA/605/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST ORDER
PASSED BY SUBORDINATE COURT) No. 605 of 2014
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CHIMANBHAI KANGIBHAI PARMAR....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR VIRAL M PANDYA, ADVOCATE for the Applicant(s) No. 1
Ms HANSA PUNANI APP for the Respondent(s) No. 1
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CORAM: HONOURABLE Ms. JUSTICE SONIA
GOKANI 7th July 2015
ORAL ORDER
Applicant-revisionist is the original accused no.1 against whom a complaint came to be lodged at Mahila Police Station, Gandhinagar, being I-C.R No. 03 of 2011, for the alleged offences punishable under Sections 5, 8 and 9 of the Immoral Traffic [Prevention] Act, 1956 ["Act" for short].
An application for discharge was moved by the revisionist vide Exh. 15 wherein the Court of learned Sessions Judge, Gandhinagar, after hearing both the sides, rejected such application, and therefore, Page 1 of 11 R/CR.RA/605/2014 ORDER aggrieved applicant has approached this Court. Facts in brief are -
The complainant is a lady Police Officer of Mahila Police Station, Gandhinagar. One lady named "A" went to the Police Station with her father and made a grievance that her uncle ie., the present revisionist was sexually harassing her. He was having perverse mentality and was indulging in illegal activities of immoral trafficking.
On the basis of her complaint, a trap was arranged and the applicant was called by the concerned lady over the telephone who happens to be niece of the present applicant-revisionist. The applicant and another person who accompanied the applicant herein named Ganpatbhai Dashrathbhai Patel reached the place on Scooter and when they both entered the flat, as detailed in the complaint, they were caught red- handed. Therefore, a complaint came to be lodged.
After due investigation, chargesheet was laid on 25th March 2011. The case was committed to the Court Page 2 of 11 R/CR.RA/605/2014 ORDER of Sessions, Gandhinagar where such application came to be moved. The Court was of the opinion that there was sufficient evidence to proceed against the applicant as it was unlikely that his own niece would make such a serious allegation. The defence of the applicant is that severe property disputes exist between the brothers, and therefore, his brother has maneuvered and attempted to malign the applicant through his daughter.
Learned advocate appearing for the applicant has urged that Sections 8 & 9 of the Act would have no applicability at all to the facts of the present case. According to him, this is a falsehood thrust upon the revisionist, however, he additionally urged that at the most, charge under Section 5 of the Act could have been contemplated. He has relied upon the decision of this Court rendered in case of Mintu Singh @ Rana S/o. Munnasinh Ray Thakur v. State of Gujarat [Criminal Misc. Application No. 10798 of 2010 : Dated 14th February 2011] [Coram : Akil Kureshi, J.] wherein Page 3 of 11 R/CR.RA/605/2014 ORDER the Court, after perusal of Section 9 of the Act has held that it applies in a case where the accused, who having custody, charge or care of, or position of authority over any person, causes or aides or abets the seduction for prostitution of that person. Term "seduction" has been dealt with by the Apex Court in the case of Ramesh v. State of Maharashtra, reported in AIR 1962 SC 1908. Since the requirements enunciated under Section 9 were not found to be fulfilled, the Court held that the revisionist cannot be made to face the charge and trial for such an offence.
In yet another decision relied upon by the learned advocate in case of Umedsingh P. Champawat v. State of Gujarat, reported in 2006 (2) GLH 736, the applicant had moved this Court under Section 482 CrPC where he was alleged of committing offence under Sections 3, 4, 5, 7 & 9 of the said Act on the ground that there was no evidence that the accused was responsible or liable for allowing the hotel to be used as a brothel or that he was living on th earning of such Page 4 of 11 R/CR.RA/605/2014 ORDER activity, he was also not in the effective management of hotel at the time of alleged offence, the Court therefore held that it would not be legal to allow him to face the charges.
Learned APP Ms. Punani has urged not to interfere with the order impugned. According to her, the charges are grave. His own niece has lodged this complaint against him and the defense raised by the accused that the complaint is result of certain property disputes cannot be considered at this stage.
Having heard learned advocates appearing for both the sides and considering the material available on record so also the decisions pressed into service, it emereges that the applicant was a government employee and was serving as Chief Mechanical Engineer. He also does not have any criminal antecedents. His medical papers brought on the record indicates that he suffers from different ailments and he had also undergone by-pass surgery. These details may not prima facie indicate his disability to indulge into the Page 5 of 11 R/CR.RA/605/2014 ORDER acts alleged.
In the present set of circumstances, the question that requires consideration is with respect to interference in the order of rejection of discharge application preferred under Section 227 of the Code of Criminal Procedure. When there are sufficient evidences and material to proceed to frame the charge, the trial Court is required to frame the charges and this Court, in such circumstances, need not interfere in revisional jurisdiction.
As far as Section 9 of the Act is concerned, the decision of this Court rendered in case of Umedsinh P. Champawat v. State of Gujarat [Supra] and Mintu Sinh @ Rana, S/o. Munnasinh Ray Thakur v. State of Gujarat [Supra] would come to the rescue of the revisionist. Section 9 of the Act applies to a case where the accused, who having the custody, charge or care of, or position of authority over any person, causes or aids or abets the seduction for prostitution of that person. It is not the case of prosecution that there is any element of Page 6 of 11 R/CR.RA/605/2014 ORDER the applicant having custody or charge or position of authority over his niece. Learned advocate for the applicant is right, therefore, in contending that to this limited extent, Section 9 of the Act would have no applicability in the facts of the case. It would be apt to reproduce relevant discussion made in the decision rendered in case of Mintu Singh @ Rana, S/o. Munnasinh Ray Thakur v. State of Gujarat [Supra], which reads thus -
"8. From the perusal of Section 9 of the Act, it is clear that it applies in a case where the accused who having the custody, charge or care of, or position of authority over any person, causes or aids or abets the seduction for prostitution of that person. In the present case, upon perusal of the evidence collected by the prosecution, I do not find that there is any element of the petitioners being in custody or charge or care of any person or in a position of authority over such person who is drawn into prostitution. To this limited extent, the petitioners are legally correct in contending that whatever be the outcome of the trial, Section 9 of the Act cannot be stated to have been involved. Learned Single Judge of this Court in case of Sureshbhai Prahladbhai Patel v. State of Gujarat(supra) made following observations :Page 7 of 11
R/CR.RA/605/2014 ORDER "9. It is evident from the above statements that the girls allegedly involved in prostitution did not stay in hotel Hidway owned by the revisioner. It is clear that they were taken to the hotel by the person through whom they were engaged, and therefore, it cannot be said that they were either under custody or charge or care of the revisioner who happens to be owner of the hotel. No other factors are indicated except that revisioner is the owner of the hotel and allegedly he used to charge more money from the customers and pay less to the girls, and therefore, there is nothing to indicate that he was enjoying a position of authority over the girls. Therefore, the aforesaid ingredients of Section 9 are not made out ,at this stage, even accepting the prosecution case at its face value.
9.1 Section 9 also provides that person who aids or abets seduction for prostitution of that person shall also be punishable. Term "seduction" has been dealt with by the Apex Court in Ramesh vs. The State of Maharashtra, AIR 1962 SC 1908, wherein it was observed thus:
" Seducation implies surrender of her body by a woman who is otherwise reluctant or unwilling to submit herself to illicit intercourse in consequence of persuasion, flattery, blandishment or importunity, whether such surrender is for the first time or is preceded by similar surrender on earlier occasions. But where a woman offers herself for intercourse for money not casually but in the course of her profession as a prostitute - there are no scruples nor reluctance to be overcome, and surrender by her is not seduction within the Code. It would then be impossible to hold that a person who instigates another to assist a woman following the profession of a prostitute abets him to do an act with intent that she may or with Page 8 of 11 R/CR.RA/605/2014 ORDER knowledge that she will be seduced to illicit intercourse."
9.2 In the light of these observations, the contents of the statements of the girls, as discussed above, do not make out a case of seduction either against the revisioner. 9.3 In the opinion of this Court, therefore, the requirements of Section 9 of the Act are not fulfilled even after taking the prosecution case, as it is, against the revisioner. The revisioner, therefore, cannot be made to face a charge and trial for offence punishable under Section 9 of the Act." With regard to Section 8 of the Act, if any one in any public place or within the sight of, and in such manner as to be seen or heard from, any public place, whether from within any building or house or not [a] by words, gestures, willful exposure of her person, or otherwise tempts or endeavours to tempt, or attracts or endeavours to attract the attention of any person for the purpose of prostitution; or [b] solicits or molests or loiters or acts in such manner as to cause obstruction or annoyance to persons residing nearby or passing by such public place, or to offend against public decency, for the purpose of prostitution, shall be punishable on first conviction with imprisonment for a term which may Page 9 of 11 R/CR.RA/605/2014 ORDER extend to six months or with fine.
Considering the contents of the FIR and the papers of chargesheet, as rightly contended by the revisionist, it appears that Section 8 cannot be invoked in the present set of facts and circumstances.
However, contents of Section 5 of the Act of procuring, inducing or taking person for the sake of prostitution gets prima facie attracted. The Court below was right in holding that this is not a case of discharge where sufficient material exists against the present applicant-revisionist. Over and above this aspect, charges could be altered at any time till the judgment and it is for the trial Court then to take a call.
This Court has examined only those lodged under the Immoral Traffic {Prevention} Act, 1956 on the strength of complaint essentially and the material collected during the course of investigation.
Resultantly, Criminal Revision Application succeeds to the limited extent of directing deletion of charges under Sections 8 & 9 of the Act against the Page 10 of 11 R/CR.RA/605/2014 ORDER applicant. Charges to be framed accordingly. Rule made absolute to the extent above.
{Ms. Sonia Gokani, J.} Prakash* Page 11 of 11