Research › Browse › Judgment

Madras High Court · body

1992 DIGILAW 3 (MAD)

SONI v. STATE

1992-01-03

JANARTHANAM

body1992
Judgment : JANARTHANAM, J. ( 1 ) PETITION under Section 397 of the Code of Criminal Procedure 1998, praying the High Court to revise the Order of the Court of the Judicial Magistrate Tambaram and passed in P. R. C. 25 of 1991. ORDER:-This petition coming on for hearing on this day, upon perusing the petition, and the Order of the Lower Courts, and the record in the case, and upon hearing the arguments of Mr. K. N. Natarajan, Advocate for the petitioners and of Mr. G. Kumaravel, Government Advocate (Cr1. Side) for the Public Prosecutor on behalf of the State, the Court made the following order: The Inspector of Police (Law and Order), Tambaram the respondent herein filed a final report under section 173 (2) of the Code of Criminal Procedure, 1973 (for short the Codet) against the petitioners herein accused 1 to 6 for the alleged offences under Sections 3 (1), 4 (1), 6 (1) and 8 (b) of the Immoral Traffic (Prevention) Act, 1956 (for short the Actt) before the Judicial Magistrate, Tambaram who took it on his file as P. R. C. No. 25/91. ( 2 ) PROCESS appeared to have been issued to the accused in the Court below and all the accused appeared to have entered appearance through a Counsel of their choice and copies of records had been furnished to them. It is, at this stage, the petitioners/accused I to 6 resorted to this present action, by filing a revision before this court and this Court admitted the revision on 6. 12. 199 1, and ordered notice to the respondent. ( 3 ) LEARNED Government Advocate represented the respondent-state. ( 4 ) ALONG with the revision, the petitioners accused 1 to 6 also filed a Miscellaneous Petition in Cr1. M. P. No. 7346 of 1991 for staying the proceedings in the aforesaid P. R. Case pending disposal of this revision and the said stay petition came up for hearing to-day. Both learned counsel appearing for the petitioners,/accused 1 to 6 as well as learned Government Advocate consented for taking up the revision itself for final disposal today. Accordingly, this revision is taken up for final disposal today. Both learned counsel appearing for the petitioners,/accused 1 to 6 as well as learned Government Advocate consented for taking up the revision itself for final disposal today. Accordingly, this revision is taken up for final disposal today. ( 5 ) LEARNED counsel for the petitioners would submit that learned Magistrate committed a serious error of law, in taking cognizance of the case as a P. R. Case and, therefore, it is, he would say, that the case, if at all, can be taken cognizance of only as a Calendar Case and this will be patent from a consideration of the various provisions adumbrated in the Act as well as the Code. ( 6 ) LEARNED Government Advocate would however repel such a submission. ( 7 ) SECTION 3 of the Act prescribes punishment for keeping a brothel or allowing premises to be used as a brothel. Keeping a brothel shall be punishable, under sub Section (1) there of on first conviction, with 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 not less than two years and not more than five years and also with fine which may extend to two thousand rupees. ( 8 ) SECTION 4 deals with punishment for living on the earnings of prostitution and the punishment provided therein shall be with imprisonment for a term which may extent to two years 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, the punishment shall be with imprisonment for a term of not less than seven years and not more than ten years. ( 9 ) SECTION 6 deals with detaining a person in premises where prostitution is carried on and the punishment provided therein shall be 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. The section further provides for the imposition of a sentence of imprisonment for a term less than seven years for adequate and special reasons to be mentioned in the judgment. The section further provides for the imposition of a sentence of imprisonment for a term less than seven years for adequate and special reasons to be mentioned in the judgment. ( 10 ) SECTION 8 makes provision for punishment for seducing or soliciting for purposes of prostitution and the punishment provided therein, on first conviction, is imprisonment for a term which may extend to six months or with fine which may extend to five hundred rupees, or with both and in the event of a second or subsequent conviction, with imprisonment for a term which may extend to one year and also with fine which may extend to five hundred rupees. A special provision has also been made in the case of an offence under this Section having been committed by a male, who shall be punishable with imprisonment for a period of not less than seven days but which may extend to three months. ( 11 ) FROM what has been provided for in the aforementioned sections, it is crystal clear that the offence falling under Section 6 is punishable with imprisonment not less than seven years, in the absence of special reasons to be mentioned in the judgment. So far as the offences falling under Sections 3 and 8 are concerned, the punishment is less than seven years in all eventualities and circumstances. But for the offence falling under Section 4, two specific punishments had been provided for. When the earnings relate to prostitution simpliciter, the punishment provided therefore is less than seven years and when such earnings relate to the prostitution of a child or minor, punishment shall be imprisonment for a term not less than seven years and not more than ten years. ( 12 ) THE First Schedule attached to the Code deals with Classification of Offences. The offences falling under the Indian Penal Code are classified under one group under the caption I- Offences under the Indian Penal Code. The offences against other Laws are grouped together under the caption TII-Classification Offences against other laws. ( 13 ) IT appears at first sight, that the offence falling under Section 6 of the Act being punishable with imprisonment for period not less than seven years is exclusively triable by a court of Session. Under the Classification of offences against other laws. ( 13 ) IT appears at first sight, that the offence falling under Section 6 of the Act being punishable with imprisonment for period not less than seven years is exclusively triable by a court of Session. Under the Classification of offences against other laws. This perhaps could have been the reason for learned Magistrate to have taken cognizance of the case as a Preliminary Register case. But a deeper study of the matter would point out that taking cognizance of the case on hand as P. R. Case by learned Magistrate is not warranted by the sanguine provisions adumbrated under the Act as well as under the Code. ( 14 ) SECTION 26 (b) of the Code Prescribes that any offence under any other law shall, when any court is mentioned in this behalf in such law, be tried by such Court and when no Court is so mentioned, may be tried by (i) the High Court, or (ii) any other Court by which such offence is shown in the First Schedule to be triable. It is not as if no special provision had been made in the Act as regards the trial of offences under the Act. ( 15 ) SECTION 22 of the Act makes provision for the trial of certain offences under the Act. The section prescribes, No Court, inferior to that of metropolitan Magistrate or a judicial magistrate of the first class shall try any offence under section 3, Section 4, Section 5, Section 6, Section 7 or Section 8. ( 16 ) THE offences with which the petitioners! accused 1 to 6 had been charged, admittedly fall under the category of offences listed under Section 22 of the Act. As such, the combined effect of Section 22 of the Act and Section 26 (b) of the Code, makes it abundantly dear that the offences with which the petitioners/accused had been charged shall be triable only by a Judicial Magistrate of the First Class and not triable exclusively by a Court of Session. In this view of the matter, taking cognizance of the case on hand as against the petitioners/accused 1 to 6 by the trial Magistrate as P. R. Case is not warranted by the provisions adumbrated under the Act and the Code and if at all he can take cognizance of the case as against them only as a Calendar Case. In this view of the matter, taking cognizance of the case on hand as against the petitioners/accused 1 to 6 by the trial Magistrate as P. R. Case is not warranted by the provisions adumbrated under the Act and the Code and if at all he can take cognizance of the case as against them only as a Calendar Case. ( 17 ) I may however point out here that if the trial Magistrate feels that on proof of the case against the petitioners/accused 1 to 6, he cannot adequately punish them, it is legitimately permissible for him to have recourse under the provisions adumbrated under Section 325 (1) of the Code, which prescribes, Wherever a Magistrate is of opinion, after hearing the evidence for the prosecution and the accused, that the accused is guilty, and that he ought to receive a punishment different in kind from, or more severe than, that which such Magistrate is empowered to inflict, or, being a Magistrate of the second class, is of opinion that the accused ought to be required to execute a bond under Section 106, he may record the opinion and submit his proceedings, and forward the accused, to the Chief Judicial Magistrate, to whom he is subordinate. T ( 18 ) IN the result, the order of the trial Magistrate in taking cognizance of the case as against the petitioners/accused 1 to 6 as a P. R. Case is set aside and he is directed to take cognizance of the said case on his file as a Calendar Case and try the same according to the procedure established by law. Petition allowed accordingly.