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CR.MA/10798/2010 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 10798 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
MINTU
SINH @ RANA, S/O.MUNNASINH RAY THAKUR & 2 - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance :
MR
CHETAN B RAVAL for Applicant(s) : 1 - 3.
MR JK SHAH APP for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 14/02/2011
ORAL
JUDGMENT
Petitioners
are original accused in FIR bearing C.R.No.II-3052 of 2009
registered at D.C.B. Police Station, Ahmedabad City on 23.8.2009.
Pursuant to said complaint, investigation was carried out and
charge-sheet was already filed. Petitioners seek that reference to
Section 9 of the Immoral Traffic (Prevention) Act, 1956 be deleted
since even as per the allegation of the complaint, ingredients of
the said offence are not disclosed.
Counsel
for the petitioners drew my attention to order passed on 30thJune,
2010 passed in Criminal Revision Application no.270 of 2010;
wherein, under identical circumstances, Section 9 came to be deleted
qua other accused making following observations:
“6. One
Pooja @ Rekha, daughter of Narendra Prakash in her statement
dated 23.8.2009 had narrated the background under which she was
drawn into the prostitution stating inter-alia that her husband was
not earning income and had driven her out from her home with her
children. She was struggling to make living in Delhi and that is how
she was forced to take up the profession. She thereafter, came to
Ahmedabad about 15 days before the date of incident since she needed
money. She had contacted her friend in Ahmedabad. She thereafter,
used to entertain customers brought by the accused and others for
which they used to charge commission. This in the nutshell is the
story. Similar statements have been given by other ladies who were
found involved in the said incident.
7. Question
is whether ingredients of Section 9 of the Act could be stated to
have been disclosed. Section 9 reads as follows :
“9.
Seduction of a person in custody.- 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:
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.”
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 :
“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 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.”
9. In
the result, petition succeeds to the limited extent of ordering
deletion of charge of Section 9 of the Act against the present
petitioners from the pending complaint against them”.
Since
situations in the present case are identical, Section 9 of the
Immoral Traffic (Prevention) Act, 1956 is also ordered to be
deleted.
Rule
made absolute to the aforesaid extent. Direct service.
(AKIL
KURESHI, J.)
(ashish)
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