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Uttarakhand High Court · body

2007 DIGILAW 41 (UTT)

ANAND SUMAN SINGH v. STATE OF UTTARANCHAL

2007-02-19

RAJESH TANDON

body2007
JUDGMENT Hon’ble Rajesh Tandon, J Heard Sri Sandeep Tandon, counsel for the applicant and A.G.A. for the State. 2. By the present application filed under Section 482 of the Code of Criminal Procedure, applicant has prayed for quashing the order dated 19.08.2006 passed by 1st Addl. Chief Judicial Magistrate, Dehradun in Criminal Case No. 3617 of 2006 State Vs. Anand Suman Singh and others under Sections 3, 5, 6 (b), 8 of the Immoral Traffic (Prevention) Act, 1956 Police-Station – Patel Nagar, District Dehradun and for quashing the charge-sheet dated 18.08.2006 submitted by Police Patel Nagar, district Dehradun in case Crime No. 129 2006 and further for quashing the proceedings of Criminal Case No. 3617 of 2006 State Vs. Anand Suman Singh & Ors. based on charge-sheet submitted by Police in Case Crime No. 129 of 2006 so far as it relates to the applicant alone. 3. Briefly stated, on 21.06.2006 a First Information Report was lodged under Sections 3, 5, 6 (b) and 8 of the Immoral Traffic (Prevention) Act, 1956, by one Shri Thakur Singh Rawat, Regional Officer, Patel Nagar, Dehradun against the applicant and nine other persons; namely Stella David, Ahmad Numan Khan alias Prince, Km. Pooja, Robert John, Monu, Kajal, Tarun, Monika and Amar Saxena. 4. According to the FIR, on 21st June, 2006 Police received an information that some men and women are involved in immoral trafficking in a house situated at Dehrakhas Colony. Getting this information, Police came into action and a Police Party headed by Shri Thakur Singh Rawat, C.O. Patel Nagar reached there and entered into the house through window and channel and found four groups of fully necked men and women involved in copulation in four different closed rooms. They were forced to open the door. One lady Smt. Stella David and one man Ahman Numan Khan alias Prince were found in the Lobby. In one room (Store) one Tarun was found along with one Lady Monika. In one room one Robert John was found along with one lady namely Km. Pooja and in another room one Monu was found along with a lady namely Kajal. While such process was going on, one Amar Saxena ran away, who was ultimately chased and arrested at Doiwala along with his Santro Car. 5. In one room one Robert John was found along with one lady namely Km. Pooja and in another room one Monu was found along with a lady namely Kajal. While such process was going on, one Amar Saxena ran away, who was ultimately chased and arrested at Doiwala along with his Santro Car. 5. Coming to the charges against the applicant, when all the abovenamed persons were being arrested, Mobile Phone (number 9911083330) in the possession of Ahmad Numan Khan alias Prince rang and the call was attended by Ahmad Numan Khan alias Prince replying the Caller that he has been arrested by the Police and is not in a position to supply girl to him. He also sought help from the Caller. Again at 21:18, the same phone rang and Ahmad Numan Khan alias Prince intimated the Police that it is Netaji’s call and requested the police to talk to him. This time the above call was received by Constable Sanjay. The caller directed the police either to release the above named arrested persons or to face dismissal from their job. On the quarry, Ahmad Numan Khan disclosed that the caller was Dr. Anand Suman Singh. This case was registered as Case Crime No. 129 of 2006. 6. During the arrest of all the abovesaid persons on the spot, Investigating Officer also recorded the statement of the arrested persons namely; Smt. Stella David, Ahman Numan Khan alias Prince, Robert John, Monu, Tarun, Km. Pooja, Kajal, Monika, Amar Saxena under Section 161 of the Cr.P.C. 7. As per Case Diary No. —1 —A dated 22.06.2006 Police Party arrested the applicant from the house of the applicant at 4.00 P.M. under Section 5/8 of Immoral Traffic (Prevention) Act, 1956 and after the arrest of the applicant police also recorded the statement of the applicant under Section 161 of the Code of Criminal Procedure. 8. During the process of the investigation, the Investigation Officer recorded the statement of the Witnesses namely Thakur Singh Rawat, C.O. Patel Nagar, G.C. Bothiyal Inspector, Patel Nagar, Constable 44 Sanjay Yadav, Pooran Singh, Smt. Bharosi Devi, R.K. Saklani, Dinesh Mohan Raturi, Manohar Lal Bhatt, Manoj Kumar Negi, S.I., Constable 15 Radhika, Constable 1205 Rafat Lai, Constable 626 Devendra Singh, Constable 236 Mohd. Hasan Jedi, Constable Naim Ahmad and Vinod Kumar Jetha S.I. under Section 161 Cr.P.C. 9. Hasan Jedi, Constable Naim Ahmad and Vinod Kumar Jetha S.I. under Section 161 Cr.P.C. 9. After lapse of 12 days of the arrest of the applicant i.e. 2.7.2006 the Investigating Officer came to the conclusion that applicant has also committed the offence under Section 7 of the Criminal Law Amendment Act and the same has been added. 10. After the investigation, the Investigating Officer submitted the charge-sheet dated 18.08.2006 in Case Crime No. 129 of 2006 and recommended the prosecution of the applicant before the trial Court under Section 3, 5, 6 (b), 8 of the Immoral Traffic (Prevention) Act, 1956 & 7 Crl. Law Amendment Act. 11. On the basis of the aforesaid Charge-sheet, the trial Court has taken cognizance in Criminal Case No. 3617 of 2006 and summoned the applicant vide order dated 19.08.2006 under Sections 3, 5, 6(b) & 8 of the Immoral Traffic (Prevention) Act, 1956. 12. Counsel for the applicant has submitted that no case is made out so far as Immoral Traffic (Prevention) Act, 1956 and Criminal Law Amendment Act, 1932 are concerned. Sections 3, 5, 6 (b) & 8 of the Immoral Traffic (Prevention) Act, 1956 are quoted below : 3. 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 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 with the knowledge that the same or any part thereof is intended to be uses as a brothel, or is willfully 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 extent 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 newspapers 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.] (3) Notwithstanding anything contained in any other law for the time being in force, on conviction of any person referred to in clause (a) or clause (b) or sub-section (2) of any offence under that sub-section in respect of any premises or any part thereof any lease or agreement under which such premises have been leased out or are held or occupied at the time of the commission of the offence, shall become void and inoperative with effect from the date of the said conviction. 5. 5. 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 form one place to another with a view 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 extent 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 extent 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 extent to rigorous imprisonment for a term of not less than seven years but may extent to life, and (ii) is a minor, the punishment provided under this sub-section shall extent to rigorous imprisonment for term of not less than seven years and not more than fourteen years;] [(2) XXX (3) An offence under this section shall be triable — (a) in the place from which a [person] is procure, 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. 6. 6. 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 with intent [that such person any 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 extent 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 has 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 purpose.] (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.— (a) withholds from her any jewellery, wearing apparel, money or other property belonging to her, or (b) threatens her with legal proceedings if she takes away with her any jewellery, wearing apparel, money or other property lent or supplied to her by or by the direction of such person. (4) Notwithstanding any law to the contrary, no suit, prosecution or other legal proceedings shall lie against such woman or girl at the instance of the person by whom she has been detained, for the recovery of any jewellery, wearing apparel or other property alleged to have been lent or supplied to or for such woman or girl or to have been pledged by such woman or girl for the recovery of any money alleged to be payable by such woman or girl. 8. 8. Seducing or soliciting for purpose of prostitution.— Whoever, in any public place or within sight of and in such manner as to be seen or heard from any public place, whether from within any building or house or not— (a) by words, gestures, willful exposure of her person (whether by sitting by a window or on the balcony of a building or house or in any other way), or otherwise tempts or endeavours to tempt or attract or endeavours to attract the attention of, any person for the purpose of prostitution; or (b) solicits or molests any person, or loiters or acts in such manner as to cause obstruction or annoyance to person residing nearby or passing by such public place or to offend against public deceny, for the purpose of prostitution, shall be punishable on first conviction with imprisonment for a term which may extent to six months, or with fine which may extent to five hundred rupees, or with both, and in the event to 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. [Provided that where an offence under this section is committed by a man, he shall be punishable with imprisonment for a period of not less than seven days but which may extend to three months.]” Section 7 of the Criminal Law Amendment Act, 1932 provides as under : “7. Molesting a person to prejudice of employment or business.—(1) Whoever— (a) with intent to cause any person to abstain from doing or to do any act which such person has a right to do or to abstain from doing obstructs or uses violence to or intimidates such person or any member of his family or person in employ, or loiters at or near a place where such person or member or employed person resides or works or carries on business or happens to be, or persistently follows him from place to place, or interferes with any property owned or used by him or deprives him of or hinders from in the use thereof, or (b) Loiters or does any similar act at or near the place where a person carries on business, in such a way and with intent that any person may be deterred from entering or approaching or dealing at such place. Shall be punished with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both. Explanation. — Encouragement of indigenous industries or advocacy of temperance, without the commission of any of the acts prohibited by this section is not an offence under this section.” 13. From the aforesaid provision, it is evident that the prosecution must prove that the applicant is involved in maintaining or assisting in the keeping of brothels and he is a occupier of the premises and further he is involved in inducing prostitution, detaining the person in the premises where the prostitution is carried on and further seducing or soliciting for the purpose of prostitution. 14. From a perusal of the F.I.R., it is evident that the prosecution has failed to establish any of the ingredients so far as involvement of the applicant is concerned under Immoral Traffic (Prevention) Act, 1956 and Criminal Law Amendment Act, 1932 and as such the aforesaid provisions are wholly inapplicable so far as the applicant alone is concerned. 15. Counsel for the applicant has now submitted that on the face of the facts on the record, no call has been recorded so as to involve the applicant in the commission of the crime. 16. In the FIR, it has been alleged that after the arrest of the persons named in the FIR on 21.06.2006 the applicant had called twice on the Cell Phone No. 9911083330 of accused persons and the second call came at about 21:18, which was received by Constable Sanjay, where by the applicant asked the Police man to let off all the arrested persons with a threatening that if they are not let off, he will see the police personnel. 17. From the Call List of Phone No. 9412009000 issued by Bharat Sanchar Nigam Limited on 28.06.2006, it appears that no such phone call was made on 21st June, 2006 at about 21:18 hours on the Phone Number 9911083330. 18. 17. From the Call List of Phone No. 9412009000 issued by Bharat Sanchar Nigam Limited on 28.06.2006, it appears that no such phone call was made on 21st June, 2006 at about 21:18 hours on the Phone Number 9911083330. 18. A counter affidavit has been filed by the State, where it has been stated that on the date of incident at the time of arrest of co-accused, one call on the Mobile Phone possessed by Ahmad Numan Khan was received from the Mobile Phone No. 9412009000 and a conversation of about one minute took place and on questioning, the accused-Ahmad Numan Khan alias Prince disclosed the name of the Caller – Dr. Anand Suman. The same mobile number was verified to be issued in favour of the applicant – Dr. Anand Suman Singh. In the counter affidavit is has been stated that due to some technical fault the second call could not be registered by the Computer and as such the same could not be traced out. Paragraph 9 of the Counter affidavit is quoted below : “9. That in reply to the contents of paras 12 to 14 of the affidavit, it is submitted that on the date of incident at the time of arrest of co-accused persons one call on the mobile phone possessed by the accused Ahmad Numan was received from a Mobile Phone No. 94120-09000 and a conversation about one minute took place. On questioning the accused Ahmad Numan disclosed to the Police Party that the said Phone call was made by Dr. Anand Suman i.e. the applicant, and the accused Ahmad Numan replied to the caller that since, he and few other persons are arrested by the Police; as such now he will not be able to supply a girl to him. The aforementioned Mobile Number was later verified to be of the present accused applicant. It is further submitted that due to some technical fault, a second call made by the applicant might have not been registered by the computer and as such, could not be traced out.” 19. In view of the aforesaid, charge against the applicant is not made out even from the counter affidavit filed by the State. 20. In Pepsi Foods Ltd. & another Vs. Special Judicial Magistrate and others (1998) 5 SSC 749, it has been held as under :- “22. In view of the aforesaid, charge against the applicant is not made out even from the counter affidavit filed by the State. 20. In Pepsi Foods Ltd. & another Vs. Special Judicial Magistrate and others (1998) 5 SSC 749, it has been held as under :- “22. It is settled that the High Court can exercise its power of judicial review in criminal matters. In State of Haryana V. Bhajan Lal 1992 Supp (1) SCC 335 this Court examined the extraordinary power under Article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to present abuse of the process of any court or otherwise to secure the ends of justice. While laying down certain guidelines where the court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guidelines in where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. Under Article 227 of the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confersvast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised while involving these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Articles 226 and 227 may be referred to. 23. In Waryam Singh v. Amarnath AIR 1954 SC 215 this Court considered the scope of Article 227. It was held that the High Court has not only administrative power of judicial superintendence. The Court approved the decision of the Calcutta High Court in Dalmia Jain Airways Ltd. Sukumar Mukherjee AIR 1951 Cal 193, where the High Court said that the power of superintendence conferred by Article 227 was to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting their mere errors. The Court said that it was, therefore, a case which called for an interference by the Court of the Judicial Commissioner and it acted quite properly in doing so. 28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to being only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complainant and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. 30.......It is certainly one of those cases where there is an abuse of the process of the law and the courts and the High Court should not have shied away in exercising their jurisdiction. Provisions of Articles 226 and 227 of the Constitution and Section 482 of the Code are devised to advance justice and not to frustrate it. In our view the High Court should not have adopted such a rigid approach which certainly has led to miscarriage of justice in the case. Power of Judicial review is discretionary but this was a case where the High Court should have exercised it.” 21. Since no material has been placed by the prosecution, which may show that the applicant is involved in immoral trafficking so far as Immoral Traffic (Prevention) Act, 1956 and Criminal Law Amendment Act, 1932 are concerned and further the Call list issued by the BSNL also does not show the second call alleged to have been made by the applicant, I find force in the argument of the counsel for the applicant and therefore, the case of prosecution holding the applicant guilty of the offences under Sections 3, 5, 6(b), 8 of the Immoral Traffic (Prevention) Act, 1956 and ....... is not made out. 22. Taking into consideration the judgment of the Apex Court in Pepsi Food (supra), following material is sufficient to quash the charge-sheet and summoning order as well as proceedings against the applicant alone :- (I) No material has been placed showing that the applicant was ever found on the spot. (II) Merely on the call of a person where voice was not known, although second call at 21:18 was not proved, no offence can be made out against the applicant so far as Immoral Traffic (Prevention) Act, 1956 and Criminal Law Amendment Act, 1932 are concerned. (III) Paragraph 9 of the counter affidavit establishes that no such call was available. (IV) Lack of ingredients of Immoral Traffic (Prevention) Act and Criminal Law Amendment Act so far as it relates to the applicant. 23. (III) Paragraph 9 of the counter affidavit establishes that no such call was available. (IV) Lack of ingredients of Immoral Traffic (Prevention) Act and Criminal Law Amendment Act so far as it relates to the applicant. 23. For the reasons recorded above, the application filed under Section 482 of the Coe of Criminal Procedure deserves to be allowed. Order dated 19.08.2006 passed by the 1st Addl. Chief Judicial Magistrate, Dehradun in Criminal Case No. 3617 of 2006 State Vs. Anand Suman Singh & Ors. summoning the accused applicant alone is quashed. The charge-sheet dated 18.08.2006 submitted by the Police in Case Crime No. 129 of 2006 so far it relates to the applicant and further proceedings against the applicant alone are quashed. 24. Consequently, application under Section 482 of the Code of Criminal Procedure is allowed.