Allahabad High Court
Smt. Afjal vs State Of U.P. on 5 August, 2019
Equivalent citations: AIRONLINE 2019 ALL 1276, 2020 (1) ALJ 231 (2019) 3 ALLCRIR 3074, (2019) 3 ALLCRIR 3074
Author: Ram Krishna Gautam
Bench: Ram Krishna Gautam
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 79 Case :- CRIMINAL APPEAL No. - 5583 of 2016 Appellant :- Smt. Afjal Respondent :- State Of U.P. Counsel for Appellant :- Chandrakesh Mishra,D S Misra,Na Counsel for Respondent :- G.A.,Hemant Kumar,Pradeep Kumar Keshri,Raj Kumar Kesari,Tanweer Ahmed Siddiqui Connected with Case :- CRIMINAL APPEAL No. - 5847 of 2016 Appellant :- Smt. Kali Respondent :- State Of U.P. Counsel for Appellant :- Ramesh Kumar Shukla,Mahendra Singh Yadav Counsel for Respondent :- G.A.,Raj Kumar Kesari Hon'ble Ram Krishna Gautam,J.
1. Both Criminal Appeal No. 5583 of 2016, Smt. Afjal Vs. State of U.P. and Criminal Appeal No. 5847 of 2016, Smt. Kali Vs. State of U.P., have been filed against one and common judgment, passed by Court No. 3 of Additional Sessions Judge/ Special Judge [Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act], Varanasi, in consolidated S.T. No. 161 of 2006, State of U.P. Vs. Mehtab and another connected with S.T. No. 284 of 2006, State of U.P. Vs. Smt. Kali, arising out of Case Crime No. 300 of 2005, u/s 3, 4, 5, 6, 9, 14, 15 of Immoral Traffic (Prevention) Act, 1956, P.S. Manduadeeh, District Varanasi, wherein a judgment of conviction for offence punishable, as above, and sentenced with two years R.I. with fine of Rs. 1000/- and in default three months additional imprisonment for offence punishable u/s 3 of Immoral Traffic (Prevention) Act, 1956, [hereinafter referred to as the Act], seven years R.I. with fine of Rs. 2000/- and in default six months additional imprisonment for offence punishable u/s 4 of the Act, ten years R.I. with fine of Rs. 5000/- and in default one year's additional imprisonment for offence punishable u/s 5 of the Act, ten years R.I. with fine of Rs. 5000/- and in default one year's additional imprisonment for offence punishable u/s 6 of the Act and ten years R.I. with fine of Rs. 5000/- and in default one year's additional imprisonment for offence punishable u/s 9 of the Act, with direction for concurrent running of sentences, was awarded against convict appellants Smt. Afjal and Smt. Kali, u/s 374(2) of Code of Criminal Procedure. Thus, appeals by both of convict appellants, with a prayer for setting aside impugned judgment of conviction and sentence made therein; thereby acquitting from charges levelled against them. Hence both the appeals are being decided by common judgment.
2. In brief memo of appeal, filed by Smt. Afjal, contains that the trial court failed to appreciate facts and law placed before it and passed the impugned judgment of conviction. Prosecution failed to prove its case beyond reasonable doubt. There was no independent impartial witness of occurrence. There was no compliance of section 15 of the Act. It was a false implication. After recording of statement u/s 313 Cr.P.C., for filling in lacunae in the prosecution case, PW11 Mala @ Vrinda @ Nargis was examined, upon behest of Ajit Singh and for her cross-examination the appellant was to deposit Rs. 7000/-. This was a discriminatory conduct of Trial Judge. Procedural irregularity was there. Application u/s 311 Cr.P.C. was moved by Ajit Singh, having no locus standi, because of him being proclaimed Chairperson of Guria Swayam Sevi Sansthan, Varanasi. He is neither independent nor natural witness. Rather he is of criminal repute and a partisan witness. His statement, u/s 161 Cr.P.C., was neither recorded nor was given to learned counsel for defence. Hence this was a development made in prosecution case. Dr. Krishna Yadav, Dr. Alka Singh and Dr. Manju Singh, PW8, PW9 and PW10, respectively, have specifically contended about non existence of any external or internal injury over person of victims, examined by them. According to them, Shabana was of 18 years, Mala @ Nargis was less than 18 years, Fatima @ Babli was more than 18 years, Pratima @ Shabnam and Shabana were of less than 18 years. Though none of the above witnesses have ever said that the victims, examined by them, were minors or juvenile. Rather on presumptive measure their age was determined and the learned trial judge has taken each of them as minor and on the basis of which judgment of conviction and sentence therein has been passed. Whereas, there are catena of judgments that two years either way in age determination may be possible and the fact in favour of the accused is to be given weight. But the trial court did not paid heed. Testimony of PW11 was full of material contradictions. She has categorically admitted about her misstatement, given before Chairman, Child Welfare Committee. Her identity was also doubtful. Appellant Smt. Afjal was not apprehended on spot nor there was any recovery of any victim from her possession or captivity. The alleged recovery of Fatima @ Babli, Sharmila @ Rubina and Shabana, wife of Sheru, was said to be from house of Rahmat i.e. husband of appellant Smt. Afjal, whereas recovery of Sangita @ Shakina, Mala @ Nargis and Pratima @ Shabana was said to be from the premises of Mehtab. But Fatima @ Babli, Sharmila @ Rubina and Shabana, who were said to be recovered from the house of Rahmat, husband of appellant Smt. Afjal, were not examined before the trial court. [Though this fact is wrong. Fatima @ Babli has been examined as PW1, but in the memo of appeal in ground no. 16 this has been wrongly written that she has not been examined before the trial court.] Recovery memo was not prepared on spot. It was full of overwriting and use of eraser and fluid. Same was position of chick F.I.R. as well as of General Diary entry. Chick F.I.R. was not sent to the Court of Magistrate before 8 days. It was against legal mandate establishing F.I.R. ante-timed. PW2 Fatima @ Babli, in her testimony, has admitted to be recovered from the house of Mehtab and not from the house of Rahmat. Whereas PW5 Ajit Singh and other witnesses have stated her recovery from the house of Rahmat, establishing material contradiction, resulting prosecution case doubtful. PW5, Ajit Singh, was having no locus standi to conduct this case, but he had intervened at every stage before the trial Judge. Even upon his application moved u/s 311 Cr.P.C., PW11 was summoned. Chairman, Child Welfare Committee, was having no authority to record statement u/s 164 Cr.P.C. Besides this, alleged recording of statement is full of doubt. This was false implication, because of enmity with Ajit Singh, who conspired with Dr. Roli Singh and got this case concocted. Learned Trial Judge passed the judgment of conviction on the basis of surmises and conjecture, because notification, regarding declaration of Red Light Area at Manduadeeh Shivdaspur, was not there on the record, even then it was accepted on the basis of presumption. Hence this appeal with above prayer.
3. Memo of appeal of Smt. Kali is with same contention that the trial court failed to appreciate facts and law placed before it and judgement in question was based on surmises and conjecture. Alleged raid was said to be of 13.11.2005 in which Shabana @ Kajol, D/o Jaipla was said to be recovered from the house of Smt. Kali, whereas Smt. Kali was not present at her house nor Shabanam @ Kajol was examined. There was no evidence against appellant regarding illegal trafficking of woman, except statement recorded u/s 161 Cr.P.C. of Shabnam @ Kajol, in which she has stated that Mukhiya, sister of appellant Kali, along with Jaiki and Mantor were forcing her for prostitution. There is nothing against appellant on record. Two independent witnesses Surya Prakash and Sanjay Vishwakarma, who were taken in above raid proceeding, were not examined before the trial court. Victim Shabanam @ Kajol was also not examined. Hence this appeal with above prayer.
4. Heard Sri D. S. Mishra, Senior Advocate, assisted by Sri Chandrakesh Mishra, learned counsel for appellant Smt. Afjal, Sri Ramesh Kumar Shukla, learned counsel for appellant Smt. Kali, learned AGA for the State and Sri Raj Kumar Kesari, learned counsel for informant- opposite party.
5. Sri D. S. Mishra, learned Senior Advocate, vehemently argued that the trial court failed to appreciate the facts and law placed before it and passed impugned judgment and order of conviction and sentence, as above, whereas all fifteen witnesses entered in the charge-sheet were police personnel and rest two witnesses Surya Prakash and Sanjay Vishwakarma, who were shown to be public witnesses, have not been examined by the prosecution. F.I.R. of above Case Crime No. 300 of 2005 was lodged against many persons, but charge sheet for offences punishable u/s 3, 4, 5, 6, 9, 14 and 15 of the Act was filed against Mehtab, Smt. Afjal and Smt. Kali only. Rahmat died during investigation and Mehtab died during trial. Hence conviction and sentence was only against both of appellants, whereas no mention was there about rest of accused persons. PW2- Babli, PW5- Ajit Singh and PW11- Vrinda @ Mala were not entered as prosecution witnesses in the charge sheet nor their statements were recorded u/s 161 Cr.P.C. in the case diary; nor those were given to learned counsel for accused. But after recording of statements of accused u/s 313 Cr.P.C., upon application, moved by Ajit Singh, having no locus standi, u/s 311 Cr.P.C. for summoning Pratima, D/o Arvind, Sharmila D/o Sapan Mandal, Shabana, D/o Shafique, Mala, D/o Arvind and Dr. Roli Singh, Chairman, Child Welfare Committee, four witnesses were summoned, leaving behind Dr. Roli Singh. But only PW11 was examined. She was not summoned as witness, because the witnesses summoned was Mala D/o Arvind, but the witness examined as PW11 was Vrinda @ Mala @ Nargis, D/o Gopal Bhakto. Exhibit Ka 23 was also not with initial of the Presiding Judge and was with variance in address of person examined. Smt. Kali was detained in jail prior to the date of raid i.e. 13.11.2005 and no evidence against her was there, except alleged torturing and violence for inducement for prostitution by her sister Mukhiya. No charge sheet against Mukhiya was there. Recovery memo was with no signature of those alleged recovered victims nor copy of the same was given to any of accused. Rather it was having erosion and use of fluid at many places. Mandate of Section 15 of the Act was not complied with. There was full of material contradictions, exaggeration and embellishments in oral testimonies of prosecution witnesses. Notification as per section 7(3) and (4) was neither proved nor placed but Shivdaspur was held to be Red Light Area. Hence request for setting aside impugned judgment of conviction and sentence with further prayer of judgment of acquittal was made.
6. Learned AGA as well as Sri Pradeep Kumar Kesari have vehemently opposed the arguments of learned counsel for the appellants with contention that the Trial Judge has rightly appreciated the facts and law placed before it. There was no lack in appreciation of facts and evidence or application of proper law in passing of impugned judgment. Prosecution has fully proved its case beyond reasonable doubt and the Trial Judge has rightly passed the judgment of conviction with adequate sentence, made therein.
7. From the very perusal of the impugned judgment and record of trial court, it is apparent that F.I.R. in form of recovery memo (Ext. Ka1) was lodged at P.S. Manduadeeh as Case Crime No. 300 of 2005, u/s 3, 4, 5, 6, 9, 14, 15 of Immoral Traffic (Prevention) Act, 1956, P.S. Manduadeeh, District Varanasi, on 13.11.2005 at 19.45 Hours against Mehtab son of Abdul Waheed, Jaiki son of unknown, Mala D/o unknown, Rahmat son of Babban Khan, Afjal, w/o Rahmat, Sheru, s/o Rahmat, Raja, s/o Late Hiro, Mukhiya, sister of Kali, Kali, w/o Sahdeo, all residents Shivdaspur Red Light Area, P.S. Manduadeeh, District Varanasi, vide chick F.I.R. (Ext. Ka4) with entry in General Diary of Police Station concerned. A letter (Ext. Ka3), addressed to Chairperson, Child Welfare Committee, Varanasi, U.P., regarding step for rescue of minor girls, was written by Ajit Singh, President, GURIA, on 13.11.2005 that GURIA, a voluntary organization has been working for the welfare of women and children in Varanasi, U.P., has been informed about trafficking of few more minor girls in Varanasi, kept under bondage, with a prayer for rescue of them and assistance of their members for locating those pockets in sudden and immediate raid. Chairman, Child Welfare Committee, had written to Superintendent of Police (City), Varanasi, for conducting above raid, who directed for instant action by Circle Officer, Bhelupur, and in response C.O., Bhelupur, along with his police team did raid along with two independent witnesses Surya Prakash, son of Bholanath Chaurasiya, and Sanjay Vishwakarma, son of Sri Shambhoo Ram Vishwakarma, of the area and Ajeet Singh, Smt. Santawana Manjoo on the same day i.e. 13.11.2005 when Sangita @ Shakina, Mala @ Nargis, D/o Arvingd, Pratima @ Shabnam, D/o Arvind were recovered from the home of Mehtab, who too was arrested on the spot. But Jaiki son of unknown and Mantar, son of unknown, managed to escape from there. Those girls apprised that those were kept under threat by them. Then after house of Rahmat, son Babban Khan was raided from where Fatima @ Babli, D/o Muzammil Sheikh, Sharmila @ Rubina, D/o unknwon, Shabana w/o Sheru were recovered. Those victims apprised about use of force and violence for prostitution, under threat by them. Sheru and Raja have run away from there. As Rahmat was wanted in previously instituted Case Crime No. 274 of 2005, hence this premises was searched and recovered articles were entered in the recovery memo (Ext. Ka2). Then after raid at the house of Kali, w/o Shahdeo, was made from where Shabana @ Kajol, d/o Jaipal was recovered, who apprised about use of force for prostitution, under threat and inducement by Mukhiya, sister of Kali. Those victims apprised about violent force for prostitution by Rahmat, Afjal, Sheru, s/o Afjal, Raja, son of Late Hero, Mukhiya, sister of Kali, Jaiki and Mantar, as an organized gang for it. They used to usurp money, earned from prostitution. Recovery memo was got exhibited as Exhibit Ka1, prepared on spot, and those victims along recovery memo and recovered articles were brought at Police Station, from where they were produced before the Chairman, Child Welfare Committee. Statement (Ext. Ka23) of Mala was recorded there at. Each of them were got medically examined and investigation resulted in submission of charge-sheet against Mehtab and Smt. Afjal being charge sheet no. 1 of 2006, u/s 3, 4, 5, 6, 9, 14, 15 of Immoral Traffic (Prevention) Act (Ext. Ka7), over which cognizance was taken. Subsequently Charge-sheet No. 1-A of 2006 under same sections was filed against Kali, w/o Sahdeo (Ext. Ka8), over which cognizance was taken. As offence was exclusively triable by the Court of Sessions, hence both of cases were committed to the Court of Sessions. After hearing learned Public Prosecutor as well as learned counsel for defence, learned Trial Judge, vide orders dated 18.6.2006 and 6.7.2006, framed charges, in S.T. No. 161 of 2006, against Mehtab and Smt Afjal, as well as in S.T. No. 284 of 2006, State Vs. Kali for u/s 3, 4, 5, 6, 9 of Immoral Traffic (Prevention) Act, which were read over and explained to accused persons, who pleaded not guilty and claimed for trial.
8. As both the sessions trials were arising out of one and common occurrence, having one and common witnesses, hence they were consolidated and S.T. No. 161 of 2006 was leading sessions trial in which evidence was to be recorded and consolidated S.T. No. 284 of 2006 was to be decided on the basis of above evidence, along with above leading sessions trial.
9. Prosecution examined PW1-Satyendra Prasad Tiwari, PW2- Fatima @ Babli, PW3- Manju Pandey, the then Station Officer, PW4- T. N. Tripathi, the then Dy. S.P., PW5- Ajit Singh, PW6- Constable Shiv Chand, PW7- Santosh Kumar Singh, PW8- Dr. Krishna Yadav, PW9- Dr. Alka Singh, PW10- Dr. Manju Singh and PW11- Mala @ Vrinda @ Nargis.
10. Owing to death of Mehtab, trial against him stood abated, vide order dated 3.4.2008, and trial only against Smt. Afjal in S.T. No. 161 of 2006 and Smt. Kali in S.T. No. 284 of 2006 remained pending.
11. For having explanation of accused persons over incriminating evidence produced by prosecution, statements of accused persons were got recorded u/s 313 Cr.P.C. Both of accused Smt. Afjal and Smt. Kali answered their ignorance about testimonies of PW1 regarding alleged recovery of seven girls, put in question no. 1, which was answered to be "not known". Same is the answer regarding raid put in question no. 4, regarding Exhibit Ka1. Same answer of ignorance is there to question no. 6. Regarding question no. 11, about testimony of raid given by PW3 Manju Pandey, "ignorance" has been said. That was the answer to question nos. 15, 16, 18, 20, 21, 24, 25, 26, 27, 28, 30, 31 and 32, i.e. above raid; above recovery; preparation of recovery memo etc. etc., as was proved by those prosecution witnesses were specifically asked but the answer of ignorance was given i.e. the same was neither denied nor said to be incorrect. Except ignorance and false investigation nothing was said. This implication was said to be owing to enmity and non-payment of illicit money to Ajit Singh. No evidence in defence was given and the Trial Judge after hearing learned counsel for both sides passed the impugned judgment of conviction and sentence, as above.
12. Learned Senior Advocate Sri D. S. Mishra has filed written brief argument and the main thrust is the same as was orally argued and written in memo of appeal, as above.
13. The first and foremost argument was that Ajit Singh was having no locus standi to participate before the Trial Court as well as before the Appellate Court, because of provisions of Code of Criminal Procedure that complainant/ informant or aggrieved party- has no vested right to directly conduct prosecution; but counsel for private party can assist Public Prosecutor in discharging his responsibility- however, Magistrate or Sessions Judge, if forms opinion that prosecution is likely to fail, may give formal hearing to such party.
14. Apex Court while dealing with social evil of prostitution with duty of State for its eradication. In Gaurav Jain Vs. Union of India and others, (1997) 8 SCC 114 has propounded the relationship between Immoral Traffic (Prevention) Act, 1956 and section 2(f) of Juvenile Justice Act, 1986, and has propounded that 'Neglected juvenile' defined u/s 2(1) of Juvenile Justice Act, 1986, should be broadly interpreted so as to include child prostitutes or children of prostitutes so as to bring them within the protection of the Act. His Lordship Rama Swamy has written that "Frailty, thy name is woman", was the ignominy heaped upon women of Victorian Era by William Shakespeare in his great work `Hamlet'. The history or sociology has, however, established the contrary, i.e., `fortitude', thy name is woman; `caress', thy name is woman; `self-sacrifice', thy name is woman; tenacity and successful pursuit, their apathetically is women. Indira Gandhi, Margaret Thatcher, Srimovo Bhandarnaike and Golda Meir are few illustrious women having proved successful in democratic governance of the respective democratic States. Amidst them, still, a class of women is trapped as victims of circumstances, unfounded social sanctions, handicaps and coercive forms in the flesh trade, optimised as `prostitutes', (for short, `fallen women'). Seeking their redemptions, a few enlightened segments are tapping and doors of this Court under Article 32 of the Constitution, through a public spirited advocate, Gaurav Jain who filed, on their behalf, the main writ petitions claiming that right to be free citizens; right not to be trapped again; readjusted by economic empowerment, social justice and self-sustenance thereby with equality of status, dignity of person in truth and reality and social integration in the mainstream are their magna carta."
15. In paragraphs 16, 17 and 18 of the judgement, supra, Apex Court has propounded the onerous task of State and instrumentalities coming forward for eradication of prostitutes or keeping of minor girls in brothels, rescuing them and giving rehabilitation, as under:
"16. Human Rights are derived from the dignity and worth inherent in the human person. Human rights and fundamental freedom have been reiterated by the Universal Declaration of Human Rights. Democracy, development and respect for human rights and fundamental freedoms are interdependent and have mutual reinforcement. The human rights for women, including girl child are, therefore, inalienable, integral and indivisible part of universal human rights. The full development of personality and fundamental freedoms and equal participation by women in political, social, economic and cultural life are concomitants for national development, social and family stability and growth - cultural, social and economical. All forms of discrimination on ground of gender is violative of fundamental freedoms and human rights. It would, therefore, be imperative to take all steps to prohibit prostitution. Eradication of prostitution in any form is integral to social weal and glory of womenhood. Right of the child to development hinges upon elimination of prostitution. Success lies upon effective measures to eradicate root and branch of prostitution.
17. Section 2(a) of the Immoral Traffic (Prevention) Act, 1956 (for short, the `ITP Act') defines `brothel' to mean any house, room, conveyance or place or any portion of any house, room, conveyance or place which is used for purpose of sexual exploitation or abuse, for the gain of another person or for the mutual gain of two or more prostitutes. The essential ingredient, therefore, is a place being used for the purpose of sexual exploitation or abuse. The phrase `for the purpose of' indicates that the place being used for the purpose of the prostitution may be a brothel provided a person uses the place and ask for girls, where the person is shown girls to select from and where one does engage or offer her body for promiscuous sexual intercourse for hire. In order to establish prostitution, evidence of more than one customer is not always necessary. All that is essential to prove is that a girl/lad should be a person offering her body for promiscuous sexual intercourse for hire. Sexual intercourse is not an essential ingredient. The inference of prostitution would be drawn from diverse circumstances established in a case. Sexuality has got to be established but that does not require the evidence of more than one customer and no evidence of actual intercourse should be adduced or proved. It is not necessary that there should be repeated visits by persons to the place for the purpose of prostitution. A single instance coupled with the surrounding circumstances may be sufficient to establish that the place is being used as a brothel and the person alleged was so keeping it. The prosecution has to prove only that in a premises a female indulges in the act of offering her body for promiscuous sexual intercourse for hire. On proof thereof, it becomes a brothel.
18. The Juvenile Justices Act, 1986 (for short, the `JJ Act') was enacted to provide for the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication of such matters relating to disposition of delinquent juveniles. The pre-existing law was found inadequate to tie over social knowledge, instrument, delinquency or improvement of the child."
16. Even in the present case GURIA and working body of it had filed a Special Leave Petition before the Hon'ble Apex Court and it was entertained there at and Hon'ble Apex Court in Criminal Appeal No. 278 of 2018, arising out of S.L.P. (Criminal) No. 3538 of 2017, Guria Swayam Sevi Sansthan Vs. Afzal and another, has cancelled, bail granted u/s 389(1) Cr.P.C. by this Court, to convict appellant Smt. Afzal. This has been mentioned in the counter affidavit, filed to the Memorandum of Criminal Appeal by Sunil Kumar, a Coordinator of NGO Guria Swayam Sevi Sansthan, explaining its locus standi, for taking part, during trial, before the Trial Judge and before this Appellate Court on the basis of law propounded by Hon'ble Apex Court in Amanullah and another Vs., State of Bihar and others, (2016) 6 SCC 699 in which hon'ble Apex Court has defined the word "locus standi" under the new prospective by extending strict approach, allowing any person from society, not related to cause of action, to approach the court, bonafidely seeking justice for those, who themselves could not approach the Court. Guria is an N.G.O. Fighting against the immoral trafficking of minor girls and is always concerned abut the best interest of the victims of human trafficking especially women and children.
17. No reply to this paragraph no. 8 of the counter affidavit was given in the rejoinder affidavit, filed on behalf of the appellant, except the general contention, that owing to enmity and not giving money, which was being given as illicit bribe, this implication and pairvi is there.
18. Hence, as Apex court has granted Special Leave to Appeal and allowed Criminal Appeal, which Guria Swayam Sevi Santhan had filed. Hence the very argument of learned counsel for appellant, regarding this question of 'locus standi', goes away.
19. The Immoral Traffic (Prevention) Act, 1956, is an Act to provide in pursuance of the International Convention signed at New York on the 9th day of May, 1950, for the Prevention of Immoral Traffic and vide Act No. 44 of 1986 Section 2 w.e.f. 26.11.1987 "the Suppression of Immoral Traffic in Women and Girls" has been substituted.
20. Section 2(a) of this Act provides definition of "brothel", which 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 of another person or for the mutual gain of two or more prostitutes.
21. Section 2(c) of the Act provides definition of "Magistrate" means a Magistrate specified in the second column of the Schedule as being competent to exercise the powers conferred by the section in which the expression occurs and which is specified in the first column of the Schedule; which includes "Magistrates" given in Schedule appended u/s 2(c) of the Act vide Act No. 46 of 1978 w.e.f. 2.10.1979.
22. Section 3 of the Act provides for punishment for keeping a brothel or allowing premises to be used as a brothel.--
(1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees.
(2) Any person who--
(a) being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, or
(b) being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is wilfully a party to the use of such premises or any part thereof as a brothel, shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine.
(2A) For the purposes of sub-section (2), it shall be presumed, until the contrary is proved, that any person referred to in clause (a) or clause (b) of that sub-section, is knowingly allowing the premises or any part thereof to be used as a brothel or, as the case may be, has knowledge that the premises or any part thereof are being used as a brothel, if,--
(a) a report is published in a newspaper having circulation in the area in which such person resides to the effect that the premises or any part thereof have been found to be used for prostitution as a result of a search made under this Act; or
(b) a copy of the list of all things found during the search referred to in clause (a) is given to such person.
23. Meaning thereby any person, who keeps or manages, or acts or assists in the keeping or management of, a brothel shall be liable to be punished with above imprisonment. Owner of the premises is not a condition precedent. Rather any person, who keeps or manages, or acts or assists in the keeping or management of, a brothel, shall be liable to be punished.
24. Section 4 of the Act provides for 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 than seven years and not more than ten years.
(2) Where any person over the age of eighteen years is proved--
(a) to be living with, or to be habitually in the company of, a prostitute; or
(b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitution; or
(c) to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of sub-section (1).
25. Section 5 of Act provides punishment for 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 that he may for the purpose of prostitution become the inmate of, 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 being 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 for a term of fourteen years:
Provided that if the person in respect of whom an offence committed under this sub-section,--
(i) is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and
(ii) is a minor, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years.
(3) An offence under this section shall be triable--
(a) in the place from which a person is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such person is made; or
(b) in the place to which he may have gone as a result of the inducement or to which he is taken or caused to be taken or an attempt to take him is made.
26. Section 6 of the Act provides for punishment for detaining a person in premises where prostitution is carried on.--
(1) Any person who detains any other person, whether with or without his consent,--
(a) in any brothel, or
(b) in or upon any premises with intent that such person may have sexual intercourse with a person who is not the spouse of such person, shall be punishable on conviction, with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) Where any person is found with a child in a brothel, it shall be presumed, unless the contrary is proved, that he has committed an offence under sub-section (1).
(2A) Where a child or minor found in a brothel, is, on medical examination, detected to have been sexually abused, it shall be presumed, unless the contrary is proved, that the child or minor has been detained for purposes of prostitution or, as the case may be, has been sexually exploited for commercial purposes.
(3) A person shall be presumed to detain a woman or girl in a brothel or in or upon any premises for the purpose of sexual intercourse with a man other than her lawful husband, if such person, with intent to compel or induce her to remain there.
27. Section 9 of the Act provides for punishment for seduction of a person in custody.--
28. Any person who having the custody, charge or care of, or a position of authority over, any person, causes or aids or abets the seduction for prostitution of that person, shall be punishable on conviction with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine:
29. Section 14 of the Act provides that offences under this Act is cognizable and arrest without warrant may be made only by the special police officer or under his direction or guidance, or subject to his prior approval.
30. Section 15 of Act provides search without warrant. This Section empowers the special police officer or the trafficking police officer, as the case may be, to enter and search premises without warrant; to call upon two or more respectable inhabitants (at least one of whom shall be a woman) of the locality in which the place to be searched is situate, to attend and witness the search, and to remove therefrom all the persons found therein. The special police officer or the trafficking police officer, as the case may be, making a search under this section shall be accompanied by at least two women police officers, and where any woman or girl removed under sub-section (4) is required to be interrogated by a woman police officer and if no woman police officer is available, the interrogation shall be done only in the presence of a lady member of a recognised welfare institution or organisation.
31. Regarding non-compliance of provisions of section 15 of the Act, learned counsel for appellants has vehemently pressed.
32. In the present case, Guria Swayam Sevi Sansthan, requested the Chairman, Child Welfare Committee, Varanasi, Dr. Roli Singh, for giving relief to minor girls kept under captivity in brothel within the area Manduadeeh brought from somewhere else and the Chairman, Child Welfare Committee, having power of a Magistrate 1st Class appointed for District Varanasi as Chairman vide Notification No. 668/80-1-05-1/13 (10)/2001 Lucknow under Section 29 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (Act No. 56 of 2000) dated 4.3.2005 as per Government Notification No. 3013/60-1-04-1/13(102)/01 dated 10.11.2004 Child Welfare Committee with Chairman Dr. Roli Singh was with jurisdiction of Districts Varanasi, Chandauli, Jaunpur, Mirzapur, Sonbhadra and Sant Ravidas Nagar Bhadohi and as per section 29(5) of the Juvenile Justice (Care and Protection of Children) Act, 2000, there was grant of power of Magistrate of 1st Class to Chairman and its Committee. Hence direction to Superintendent of Police for intervening in above cognizable offence punishable under Immoral Traffic (Prevention) Act, 1956 was given and in consequence this raid by above police team lead by informant, comprising of two independent witnesses Surya Prakash, son of Bholanath Chaurasiya, and Sanjay Vishwakarma, son of Sri Shambhoo Ram Vishwakarma, of the area and Ajeet Singh and Smt. Santawana Manjoo, did raid and recovered seven girls, in which five were of less than 18 years, in their medical age determination. Hence this argument regarding Special Police Officer is of no avail.
33. PW1-Satyendra Prasad Tiwari, in his statement on oath, has said that on 13.11.2005, being posted as Inspector Incharge of Police Station Bhelupur, Varanasi, he, along with his team, by a Government vehicle, rushed at Sheodaspur area where Circle Officer, Bhelupur, was present and a raid at the house of Mehtab was made in which three girls namely Sangita @ Shakina, Mala @ Nargis and Pratima @ Shabnam were recovered along with Mehtab. But Jaiki and Mantar managed to escape from there. Soon after raid at the house of Mehtab, raid at the house of Rahmat was made, from where Fatima @ Babli, Sharmila @ Rubina and Shabana wife of Sheru were recovered. But Sheru and Raja managed to escape from the spot. Then after raid at the house of Kali was made and from where Shabana @ Kajol was recovered. All these recovered girls stated about forced prostitution by them being managed, induced and kept by Rahmat, his wife Afjal, his son Sheru, Raja, Mukhiya, sister of Kali, Jaiki and Mantar. They were tortured for doing prostitution and this was being done as members of a gang for earning. Recovery memo was prepared by the Circle Officer and signature of this witness was got over it. Recovery memo, (Ext. Ka1), is on record, under signature of T. N. Tripathi as well of this witness. Smt. Shaili Singh, S.O., P.S. Manduadeeh, was accompanying in this team. In cross-examination there is no exaggeration or material contradiction. Rather there is reiteration of examination in chief.
34. PW2 Babli @ Fatima, in her examination in chief, has categorically stated to be recovered in above raid made at about 6.00 P.M. of two years before from the house of Rahmat from where Sharmila @ Rubina and Shabana and she was recovered. Seven girls were recovered by the police in above raid. She was brought from Bengal by Rahmat and his wife Afjal and was forcibly compelled and tortured for prostitution and earning from it was being forcibly snatched by these accused persons. She was badly beaten and was kept at the house of Tulsi, where prostitution was going on. In cross-examination she has said that she was brought at the house of Rahmat where she remained for one year. Rahmat procured her. She was kept at the house of Mehtab on rent and she was recovered from the house of Mehtab to whom she was acquainted. She was not recovered from the house of Rahmat. Her testimony has not been cross-examined by accused Kali. But regarding her recovery in above raid and her keeping in brothel with cruelty and torture for prostitution by Rahmat, his wife Afjal, his son Sheru and other including Mehtab and Mukhiya is with no contradiction or exaggeration. She is fully reliable witness.
35. PW3 Manju Pandey, Sub Inspector of Police, the then Station Officer of P.S. Mahila, Varanasi, has repeated prosecution version in her examination in chief with formal proof of Exhibit Ka2. In her cross-examination, made by learned counsel for defence, she has reiterated the same and there is no material contradiction or exaggeration.
36. PW4 Dy. S.P. T. N. Tripathi, in his examination in chief, has repeated the same version of prosecution and in his cross-examination the same contention is there.
37. PW5 Ajit Singh, Chairman, Guria Swayam Sevi Sansthan, has said in his examination in chief the version of Exhibit Ka1 and in his cross-examination he has said that he was accompanying the raiding party and upon his pointing out, those houses, having kept those minor girls, were raided and recovery was made. These girls were being forced for prostitution with cruelty, too by those accused persons and office of Guria Swayam Sevi Sansthan was situated in above locality and this person was involved in above registered N.G.O. with aim of eradication of prostitution and sexual exploitation of girls and immoral trafficking of girls and women. Though, suggestive question has been put regarding criminal cases against this witness, which has been admitted. But has been explained to be result of this social work, being obstructed by those accused persons, who were involved in such criminal activity. Learned counsel for appellants has argued that money was being given as illicit bribe to Ajit Singh and members of Guria Swayam Sevi Sansthan, which was stopped, resulting this false accusation. It itself shows that why for money was being given to Ajit Singh or any member of Guria Swayam Sevi Sansthan? Particularly in above proposition of law, wherein there is presumption of keeping of brothel in case of recovery of minor girls from any premises, against the person, who is either owner or manager or agent or assistant in keeping above brothel and burden is upon accused to prove otherwise. But in the present case neither any evidence in defence has been given nor even a doubt could be raised. Testimony of this witness is fully intact and this witness is wholly reliable witness.
38. PW6- Constable Shiv Chand is a formal witness of registration of this case crime number, who has proved chick F.I.R. and G.D. entry (Ext. Ka5) in which there is no contradiction or exaggeration in examination in chief. Rather is corroboration about fact that all those seven girls, who were recovered, were brought at Police Station along with recovery memo; on the basis of which, this case crime number was got registered.
39. PW7- Santosh Kumar Singh, the then Dy S.P., was Investigating Officer of this case crime number and he, in his testimony, has proved investigation made by him. He has formally proved charge sheets (Ext. Ka7 and Ext. Ka8), prepared and submitted under his handwriting and signature. In cross-examination he reiterated about recovery of seven girls from the houses of Rahmat, Mehtab and Kali and statements of victims were recorded before the Chairman, Child Welfare Committee, under section 164 Cr.P.C. There is no contradiction or exaggeration in his statement.
40. PW8- Dr. Krishna Yadav, is Medical Officer, who has proved medico legal report of Sangita D/o Arvind. She has proved Exhibit Ka9 and Exhibit Ka10 to be in her handwriting and signature.
41. PW9- Dr. Alka Singh, is Medical Officer, who has proved medico legal report of Mala @ Nargis, D/o Arvind and her age was held on the basis of x-ray report to be of less than 18 years. She has proved Exhibit Ka11 to Exhibit Ka16 to be in her handwriting and signature.
42. PW10 Dr. Manju Singh, is Medical Officer, who has proved medico legal report of Fatima @ Babli and has formally proved Exhibit Ka17 and Exhibit Ka18. Her age was held to be of less than 18 years. She has proved medico legal report of Shabana d/o Jaipal with formal proof of Exhibit Ka 21 and Exhibit Ka22 and her age was held to be less than 18 years. She has also proved medico legal report of Pratima @ Shabnam, with formal proof of Exhibit Ka 19 and Exhibit Ka 20 and she was held to be less than 18 years of age.
43. PW11 is Vrinda @ Mala @ Nargis, who in her examination in chief, has said about her keeping at brothel of Afjal Begum, who induced and compelled her for prostitution and even after her purchase she was compelled, tortured and kept in prostitution, for which she was badly beaten by Afjal Begum, Pappu alias Prem Prakash, Johni @ Om Prakash and Rahmat. She has categorically said that "nwljs fnu ls vQty us esjk uke o`Unk ls cny dj ujxhl j[k fn;kA vQty csxe eq>ls tcjnLrh esjh bPNk ds fo:+) nsg O;kikj ekjihV dj djkus yxhA jger] tkuh mQZ vkseizdk'k] iIiw mQZ izseizdk'k vDlj esjs lkFk tcjnLrh esjh bPNk ds fo:) ekjihV dj cykRdkj djrs jgsA jger] tkuh mQZ vkseizdk'k] iIiw mQZ izseizdk'k jkst dLVej ysdj vkrs Fksa] nsg O;kikj ls izkIr iSlk vQty csxe] jger] iIiw mQZ izseizdk'k] tkuh mQZ vkseizdk'k ys ysrs FksA [From the next day my name was changed by Afjal from Vrinda to Nargis. Afjal Begum forced and tortured for her prostitution against her wishes. Rahmat, Johni @ Om Prakash, Pappu @ Prem Prakash very often used to commit rape against her wishes after beating her. Rahmat, Johni @ Om Prakash, Pappu @ Prem Prakash used to bring customer daily and used to take money earned from prostitution.] (English translation by Court itself)"
44. She has further stated about sale in the hands of Tulsi by Afjal Begum, who again changed her name from Nargis to Mala. She was tortured, forced and compelled for prostitution by those accused persons. She has explained about the circumstances under which she said about her name, name of her parents, her residence under threat and coercion, exerted by those accused persons and their agents. But she is the person, who was recovered from the brothel, being run by this gang and in above raid she, along with six other girls, were recovered. In cross-examination, regarding this piece of evidence, there is no material contradiction, exaggeration or embellishment. Rather in over all appreciation of her testimony, she seems to be wholly reliable witness, who was kept under suffering and was rescued in above raid.
45. Learned counsel for appellants has vehemently argued by way of hair splitting of fact. Whereas there is catena of judgment of this court as well as of Apex Court that who are illiterate, rustic and vulnerable witnesses, put under fatigue cross-examination, are bound to say with variations and those variations are natural variations proving them to be natural witness.
46. Learned counsel for appellant has vehemently pressed that recovery was from house of Mehtab and not from the house of Rahmat. Kali was not present there at. Her sister Mukhiya was said to be coercing for doing prostitution for which Kali was punished. The framing of charge is for the fact of recovery; and there is variance of name and identity of PW2 and PW11. Whereas from the very perusal of charges levelled against accused persons, it is apparent that a raid at three brothels in one and same sequence in close visinity was done resulting recovery of seven girls, kept in brothels, who were not residents of above locality and they have instantly apprised about keeping in brothels with coercion, torturing and exploitation for prostitution by those keepers, assistants and Managers of brothels, who were involved in this prostitution and were usurping earnings from the same as members of a gang, which was there. Hence charges were levelled regarding recovery of all those seven girls. It was not accusation for a single instance or recovery of one girl from one place. Rather it was prosecution for those cumulative act of prostitution, which was proved by prosecution. Hence framing of charge and evidence led by prosecution for proving of charge is with no doubt or any illegality. Prosecution was successful in proving of charge by formal prosecution witnesses, who registered case crime number as well as who investigated it, coupled with witnesses of fact, who did this raid, as well as independent witness Ajit Singh, Chirman, Guria Swayam Sevi Sansthan, who participated in this raid as well as two victims PW2-Fatima @ Babli and PW11- Mala @ Vrinda @ Nargis, who were victims of this offence and were rescued in above raid.
47. Now in view of presumption, the burden was upon defence to prove the same otherwise. But for it there was no evidence laid in defence. Rather articles recovered from the house of Rahmat, written in Exhibit Ka2, was taken back by appellant Afjal, wife of Rahmat, in accordance with judicial order of Court saying the same to be of her own, which establishes this raid made at above premises of Rahmat on above date, time and place and this was corroborative proof of the prosecution witnesses PW2 and PW11. Hence the ingredients for offences punishable u/s 3, 4, 5, 6 and 9 of the Immoral Traffic (Prevention) Act, 1956 were fully proved with no doubt and the defence failed to prove it otherwise or discharge the burden, which was imposed by Legislature under above presumptive legislation. Hence learned trial court has rightly appreciated the facts and evidence placed before it, thereby passed the impugned judgment of conviction.
48. So far as sentence regarding appellants is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual case.
49. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of Court to constantly remind itself that right of victim, and be it said, on certain occasions persons aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that Courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime, which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to society's cry for justice against the criminal'. [Vice Sumer Singh Vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder Vs. Puran, (1990) 4 SCC 731, M.P. Vs. Saleem, (2005) 5 SCC 554, Ravji Vs. State of Rajasthan, (1996) 2 SCC 175].
50. In this present case of immoral trafficking and prostitution, a blot over human race itself as well human rights and International covenant, resulting this legislation, and purpose of this legislation, does not permit any leniency in sentence. Hence the Trial Judge has rightly sentenced the convict-appellants, as above.
51. Both the above appeals merits dismissal. Dismissed accordingly.
52. Record of trial court along with copy of judgment be sent to the trial court for follow up action against convict appellants.
53. The appellant Smt. Afjal is in jail and the appellant Smt. Kali is on bail. Her bail bonds are cancelled and her sureties are discharged. She shall surrender before the trial court within fifteen days from the date of judgment, where she shall be sent to jail for suffering sentences awarded to her by the trial court.
Order Date :-05.8.2019 Pcl