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CR.RA/270/2010 3/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 270 of 2010
=========================================================
PARTH
@ KUMAR S/O SUDHANSU MITRA & 1 - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
RJ GOSWAMI for
Applicant(s) : 1 - 2.
MR MG NANAVATY,APP for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 30/06/2010
ORAL
ORDER
Rule.
Learned APP Mr. Nanavaty waives service of rule on behalf of
respondent State. Considering the controversy involved, petition is
taken up for final disposal today with the consent of advocates on
both sides.
The
petitioners are the original accused. They have challenged order
dated 28.4.2010 passed by learned Additional City Sessions Judge,
Ahmedabad. By the said order, learned Judge was pleased to reject
different applications filed by the original accused namely
application exh. 3,4 and 5. So far as present petitioners are
concerned, they had filed application exh.4 in Sessions Case No.
75/2010 praying inter-alia that charge under Section 9 of the
Immoral Traffic (Prevention) Act, 1956 (here-in-after referred to as
the Act ) be dropped. Learned Judge after examining the
materials on record and after perusing Section 9 of the Act, found
that prayer cannot be granted.
It
is the case of the petitioners put-forth through their learned
advocate that ingredients of Section 9 of the Act are not made out
even if all the allegations made in the complaint as well as
evidence collected by the prosecution through investigation is
accepted as unopposed. Counsel for the petitioner places reliance on
decision of Learned Single Judge of this Court in case of Sureshbhai
Prahladbhai Patel v. State of Gujarat in Criminal Revision
application No.414/2002 dated 22.10.2002.
I
have also heard learned APP Shri Nanavaty for the State.
Central
question involved in the present petition is whether Section 9 of
the Act is applicable in facts of the case.
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.
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.”
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.
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.
The
petition is allowed accordingly. Rule is made absolute to above
extent.
It
is clarified that I have expressed no opinion with respect to rest
of the allegations and trial shall proceed in accordance with law.
Direct
service is permitted.
(Akil
Kureshi,J.)
(raghu)
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