Gujarat High Court
Nirav Pratapbhai Thakkar vs State Of Gujarat on 16 April, 2015
Author: S.G.Shah
Bench: S.G.Shah
R/CR.RA/640/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 640 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
================================================================
1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any order
made thereunder ?
================================================================
NIRAV PRATAPBHAI THAKKAR....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
================================================================
Appearance:
MR KB ANANDJIWALA, ADVOCATE for the Applicant(s) No. 1
MS JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 16/04/2015
CAV JUDGMENT
Page 1 of 11
R/CR.RA/640/2012 CAV JUDGMENT
1. Heard learned advocate Mr. K. B. Anandjiwala for the applicant and learned APP Ms. Jirga Jhaveri for the respondent - State. Perused the record of revision application as well as police papers.
2. Petitioner herein is original accused before the learned 2nd Additional Sessions Judge, Kachch @ Bhuj in Sessions Case No. 71 of 2012, wherein prosecution has leveled the charges against the petitioner under Section 14(B) and (C) of the Foreigners Act, 1946 read with Section 3 of the Indian Passport Act, 1920 and Rule 3 of the Passport (Entry to India) Rules, 1950 as well as Section 4(1), 5(1)(a)(d) of the Immoral Traffic (Prevention) Act, 1956, pursuant to FIR registered with Bhuj Taluka Police Station being II - C. R. No. 3014 of 2012 dated 13.01.2012, then charge - sheet was filed against the petitioner as well as against one Jyoti @ Mira Mohanbhai Raval and disclosing as many as 4 accused contending that they could not be traced in absence of their address and further details even after investigation.
3. After investigation, when charge sheet was submitted before the Sessions Court, the present petitioner has on 20.11.2012 filed an application under Section 227 of the Code of Criminal Procedure to discharge him from the charges leveled against him on several grounds, most of them are on legal issues that there cannot be charges as alleged in the charge - sheet against him.
4. By impugned judgment and order dated 11.12.2012, the learned 2nd Additional Sessions Judge, Kachchh has dismissed the application by detailed order referring rival submissions and decision cited by the parties.
Page 2 of 11 R/CR.RA/640/2012 CAV JUDGMENT5. The sum and substance of the submissions by the petitioner is to the effect that; (1) the investigation itself is not proper, in as much as, the Investigating Officer is not empowered to investigate the offence, (2) There cannot be charges under all such different Acts which is contrary to each other. (3) There is no substantial and material evidence, which can be considered as prima - facie evidence to continue the trial against the petitioner.
5.1 In support of such submissions, petitioner has relied upon the provision of Section 13 of the Immoral Traffic ( Prevention ) Act, 1956 and reproduced the same in revision application itself contending that Investigating officer Mr. J. J. Dhranga is not appointed under Section 13 of the Immoral Traffic ( Prevention) Act and, therefore, entire investigation and charge sheet is bad in law and deserves to be quashed and set aside. If we peruse the provisions of Section 13 of the Act, it becomes clear that there is requirement of appointing a special officer for each area to be specified by the State Government in this behalf for dealing with the offences under the Act in that area and that such special officer shall not below the rank of Inspector of police. Section 13 is providing the details for selection of such special officer and, therefore, it is tried to emphasize by the learned advocate for the petitioner that in absence of specific officer under the Act, police inspector Mr. Dhranga is not empowered to investigate the offence.
5.2 However, learned APP has rightly submitted and shown the Standing Order No. 4 of 1994 by the Central Government regarding Appointment of Special Police Officer under the provisions of Suppression of Immoral Traffic in Women and Girls (Bombay) Rules, 1958 stating that D. G. and I. G. of Police may Page 3 of 11 R/CR.RA/640/2012 CAV JUDGMENT appoint an inspector of police, in charge of police station to be special police officer under Sub - section 1 of Section 13 of the Act in super-session of all earlier orders for the purpose and fix the area of the respective police station under jurisdiction of such Inspector of Police, whereas pursuant to provisions of Section 13(3)
(a) police officer subordinate to the police inspector were also appointed as such. In view of such standing order, which is in force since the year 1994 and even on the date of lodging of FIR and filing of charge - sheet, there is no substance in the first submission by the learned advocate for the petitioner regarding jurisdiction and, thereby, validity and legality of the investigation and thereby filing of charge - sheet against the petitioner as aforesaid.
5.3 So far as second issue regarding charges under different Acts viz. Passport Act, Foreigners Act are concerned, it is contended that since petitioner has not committed any offence under the Passport Act, he should not be charge - sheeted both under the Foreigners Act and Passport Act. Even without entering into details of such submissions, it becomes simple and clear that when charge- sheet is filed against more than one accused considering total number of offences committed by all of them, if at all petitioner has not committed any particular offence in any specific enactment viz. the Passport Act in the present case, then it cannot be said that such accused should be discharged from all the offences under the same charge - sheet. It is also clear and obvious that if petitioner has not committed any offence under the Passport Act, then he may submit so, at the time of framing of charge and in general, and trial Court will consider such submission and will frame the charges under the relevant sections only.
Page 4 of 11 R/CR.RA/640/2012 CAV JUDGMENT6. So far as factual details is concerned, since there is no allegation in the FIR or in the charge - sheet regarding any conspiracy or activity by the petitioner to get the passport in the name of the co - accused Fatima Akhtarun, daughter of Habib Chaudhari was found in the area without valid passport and Visa though she was not an Indian Citizen but the Bangladeshi girl; it is contended that petitioner has not committed any offence under Section 3 of the Passport Act read with Section 3 of Passport Rules, 1950. It is true that aforesaid provisions restrict the entry of any person from any place outside India to enter into India without possessing valid passport as per the conditions laid down in such enactment and any entry in contravention of such rules is punishable in a term which can be extended upto 5 years or fine of Rs.50,000/- or with both. Simple reading of provisions of such Act and Rules confirm the commission of offence by a person other than a person so entering in the Indian territory. However, as aforesaid, if there is no such evidence against the petitioner, then charges may not be framed against such person by the trial Court, but it cannot be said that for such reason petitioner cannot be charged and tried for the offence, for which there is prima - facie evidence against him during investigation. In the present case, charges under the Passport Act and Rules are certainly leveled against Co - accused Fatima, in as much as, she has entered into territory of India without valid passport though she is not an Indian citizen, but it is admitted fact that she is Bangladeshi girl. Therefore, there is no substance in such submissions, so as to allow the revision application, as prayed for.
6.1 Though there is no such evidence on record, it cannot be ignored that if somebody has conspired and abetted the commission of such offence, then though he may be Indian citizen, Page 5 of 11 R/CR.RA/640/2012 CAV JUDGMENT he may be charged and tried for such offence and, therefore, also it cannot be said that only because petitioner is an Indian citizen he cannot be tried under the provisions of the Passport Act and Rules, even if there is an evidence regarding conspiracy and abetment. However, the rejection of revision application is not rest upon such consideration, but on several aspect, which are discussed in this order.
7. Then remains the only issue regarding absence of cogent and material evidence from the charge - sheet papers (police papers) regarding commission of offence as alleged in the FIR and charge - sheet by the present petitioner.
7.1 To scrutinize such evidence, we have to refer the FIR and charges leveled against the petitioner in the charge - sheet. The investigating officer Mr. Dhranga has registered an FIR under the above sections disclosing that on 11.12.2011 he got a report in writing by a police inspector Mr. B. D. Ratna of 124 Battalion of BSF, Mundra Road, Bhuj and he has sent with such report the accused Fatima - a 20 years old girl, residence of Bangladesh contending that he found out such girl on gate of his battalion on Mundra road at Bhuj and, thereupon, Investigating Officer has got the girl searched by woman head constable Vimlaben Rabari wherein they found Rs.980/- and mobile phone having No. 9183885628. The Investigating Officer has also got the girl medically checkup at GK General Hospital and recorded her statement wherein said Fatima has disclosed that she is resident of Bangladesh and after narrating her personal details and difficulties in her life which are not much material for the purpose but contending that she met one Johny and his sister Suma @ Pinky, who had come from Ahmedabad at the place of her grand mother, where they have told that if she reaches to Ahmedabad, then she may get a job for Rs.9000/- to Rs.10,000/- in some store. Thereby Page 6 of 11 R/CR.RA/640/2012 CAV JUDGMENT she is tempted to come to Ahmedabad to get such salary and they reached to the border between Bangladesh and India by bus near Shekhpada and they crossed the borders during night hours and, thereafter, reached to Hawra station in private vehicle and then reached to Ahmedabad in train where Pinky has taken her to her house where they met her brother Johny after some days. However, she does not know the areas where Pinky was residing and she stayed there for couple of days and, thereafter, Pinky has sent her to Bhuj with some other lady at the house of Meera who is one of the accused in the present case. It is further stated in the complaint itself by said Fatima that at her house, Meera was getting the work of prostitution with her from different customers and that Rs.980/- recovered from her possession is an amount of tip received by her from such customers. It is further contended by Fatima that on 11.12.2011 she has left the house of Meera and reached to one temple where she received a phone from present petitioner Nirav who has taken her on two occasions as a customer conveying her to stay at the same place. Therefore, she stayed at that place but when she noticed the arrival of Nirav with Meera after some time she had been to the gate of battalion where police or military was standing, where she was inquired by them and then forwarded to the police station with report, as aforesaid. It is further disclosed by her that she does not possess the passport and she does not have Visa to enter into India and she has entered into Indian territory on temptation of getting job with good salary on the say of said Pinky. Thereafter, Investigating officer has recorded the steps taken by him and outcome of such offence as aforesaid. The sum and substance of FIR is quite clear that Fatima - 20 years Bangladeshi girl had been tempted by one Pinky of Ahmedabad to reach to Ahmedabad for getting job with good salary and when she reached to Ahmedabad with her, instead of job, she was engaged in the work of prostitution. Therefore, there is prima - facie evidence regarding commission of offence under the Passport Act and Rules Page 7 of 11 R/CR.RA/640/2012 CAV JUDGMENT as well as Immoral Traffic ( Prevention) Act. The sum and substance of the complaint is also clear to the effect that said Fatima has tried to get escaped from control of co - accused Meera but she got a phone from present petitioner and when she waited for the petitioner, he has not came all alone but went at her place with Meera, who was getting the work of prostitution from Fatima and, therefore, it cannot be said that present petitioner is absolutely innocent and nowhere concerned with any illegal activity either by the Fatima, or by other co - accused Meera. It is not disputed fact that in absence of specific information from Fatima police could not trace the other persons with whom she reached to the Bhuj and who dragged her in such illegal activity. Therefore, only because there is no evidence against some of the accused, it cannot be said that the present petitioner has not committed any offence when there is prima facie evidence against him during investigation that he has supported the immoral trafficking of the young girl of 20 years and that too, when she is not an Indian citizen. Thereby he has also abetted the commission of offence to help other accused to support all such unauthorized foreigner in India. At this juncture, provisions of Section 14 of the Foreigners Act would relevant which provides for penalty for contravention of provisions of Act and there is specific provision in the Act that nobody should enter into the Indian territory without having valid passport and visa. Provisions of Section 14(B) of Foreigners Act is relevant which provides penalty for abetment, confirms that to every abets punishable under Section 14 and 14 A regarding prevention of the provisions of this Act and entering in restricted areas of our country shall be punished with punishment provided for the main offence which is abated and even if the act abeted in consequence of abetment.
8. On perusal of the police papers, it becomes clear that there is prima facie evidence in the form of several details which confirms Page 8 of 11 R/CR.RA/640/2012 CAV JUDGMENT the involvement of the petitioner as aforesaid. However, it would not be appropriate to disclose and explain the content of all such prima facie evidence since trial is yet to be commenced so as to avoid prejudice to either side. However, at the cost of repetition, it is to be noted that there is statement of one Batuksinh, a rickshaw driver who confirms that Fatima has travelled in his rickshaw from the place of Meera to the place of present petitioner where petitioner has paid rickshaw fair of Rs.650/- whereas statement of Rajendra who was serving in the company of present petitioner has also confirmed that petitioner has called the girl in the room of the hotel where they all were staying as per arrangement made by their company.
9. If we peruse the impugned judgment, the Sessions Court has also considered rival submissions in detail and law on the issue also before concluding that petitioner cannot be discharged.
10. Learned advocate for the petitioner is relying upon a decision in case of State of Gujarat vs. Bai Radha reported in 1968 GLR 278 in support of his first contention regarding powers of Investigating Officer to investigate the offence. However, as aforesaid, when government has already appointed the investigating officer under the concerned statute, this judgment is not helpful to the present petitioner to get discharge. Petitioner has also relied upon the decision reported in case of Umedsinh P. Champawat vs. State of Gujarat reported in 2006 (2) GLH 736 wherein Single Judge of this Court has quashed the FIR considering that hotel premise of the accused was not raided and that there is no evidence to prove that accused was responsible or liable for allowing the hotel to be used as a brothel or that he is living out of such activity only and there is no evidence to the effect that any part of the hotel premises was in actual use of illegal activities of immoral traffic and more particularly, held that only a Page 9 of 11 R/CR.RA/640/2012 CAV JUDGMENT statement of co accused is not enough. Thereby it is clear that in reported case, the accused was owner of the hotel, whereas in the present case, the allegation against present petitioner is not as an owner of any premises, but it is as customer and a person who tried to catch the victim of prostitution with the co - accused Meera instead of helping her to get rescue from the control of Meera. Unfortunately, he was also one of the customers and, therefore, that he being a customer, is not punishable, but that part of evidence confirms the involvement of the petitioner in the offence when he called the victim to stay at particular place and then reached there with the lady Meera who was controlling the victim. If we consider the prima facie evidence from police papers, it becomes clear that when victim has tried to rescue herself from the control, petitioner has called her on her mobile, but the prima facie evidence clearly proves that he has not only called the victim, but went there with Meera, lady who was otherwise controlling the victim for prostitution.
11. It is to be considered that for framing of charge, the Court is required to form an opinion that there is a ground for presuming that the accused has committed an offence. Considering above discussion, it is certain that offence has been committed. Then accused has to face the trial. If prosecution fails to prove the charge, he may be acquitted, but there cannot be order of discharge on presumption that there will be no evidence or no reason for conviction.
12. In support of my conclusion, reference to certain judgments of the Apex Court are necessary, which are as under:
Page 10 of 11 R/CR.RA/640/2012 CAV JUDGMENT1) AIR 1980 S.C. 52: Supdt. And Remembrance of Legal Affairs, West Bengal vs. Anil Kumar Bhunja (2) AIR 1990 S.C. 1962 = (1990) 4 SCC 76: Niranjan Singh Karam Singh Punjabi, Advocate vs. Jitender Bhimraj Bijja
3) AIR 2001 S.C. 1507: Om Wati vs. State (4) AIR 1997 S.C. 2041: State of Maharashtra vs. Priya Sharan Maharaj (5) AIR 2000 SC 665 = 2000 SCC(2) 57 : State of MP vs. SB Johari (6) 2005 SC 359: State of Orissa vs. Debendra Nath Padhi (7) (1997) 4 SCC 393 = 1997 AIR SCW 1833: State of Maharashtra vs. Priya Sharan Maharaj (8) AIR 2000 SC 2583: State of MP vs. Mohan Lal Soni (9) (1996) 4 SCC 695 = 1996 AIR SCW 1977: State of Maharashtra V/s. Som Nath Thapa (10) AIR 1999 SC 3845 = 1999 AIR SCW 3921: State of U.P. V/s. Udai Narayan (11) AIR 1987 SC 773: State Of Himachal Pradesh Vs. Krishan Lal Pardhan (12) AIR 2007 SC 2149 = 2007 AIR SCW 3683 Soma Chakravarty v. State Therefore, petition is dismissed. Rule is discharged.
Interim relief, if any, granted earlier shall stand vacated.
(S.G.SHAH, J.) drashti Page 11 of 11