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2010 DIGILAW 777 (CAL)

Amit Saha v. The State of West Bengal

2010-07-09

ASHIM KUMAR ROY

body2010
Judgment : 1. The present petitioners who have been charge-sheeted under Sections 363/366A/506/120B of the Indian Penal Code and under Sections 4/5 of the Immoral Traffic (Prevention) Act, 1955 have moved this Court for quashing of the said charge-sheet on the following grounds; (a) The defacto-complainant and the victim girl by filing affidavits have now admitted that the petitioners are innocent and out of misunderstanding the FIR has been lodged against them and her date of birth being February 2, 1989, on the alleged date of incident, i.e., on July 31, 2008 she was above the age of 19 years. (b) The charge-sheet under Sections 4 and 5 of the Immoral Traffic (Prevention) Act, cannot be sustained in the eye of law inasmuch as the investigation was conducted by a police officer who was not a special police officer appointed under the said Act. 2. Heard the learned Counsels appearing on behalf of the petitioners as well as for the State and the defacto-complainant. Considered the materials on record, more particularly the pleadings in the instant criminal revisional application as well as those contained in the affidavits filed on behalf of the defacto-complainant and the victim girl. 3. Now, having regards to the charge-sheeted materials appearing from the Case Diary, I find that in the First Information Report there is specific allegations against the present petitioners that they were involved in abducting the victim girl, claimed to be a minor, with intent to force and seduce her to illicit intercourse with any person against her will for their wrongful gain and in furtherance to such intention she was removed to Mumbai, where she was employed and used for the purpose of prostitution. Such allegations were sufficiently corroborated by the statement of the other witnesses recorded during the course of investigation. In connection with the aforesaid case after recovery of the victim girl her statement was recorded under Section 164 of the Code of Criminal Procedure. In her such statement which was recorded on July 31, 2008 she claimed to be aged about 17 years and vividly described as to how the present petitioners, more particularly the petitioner no. In connection with the aforesaid case after recovery of the victim girl her statement was recorded under Section 164 of the Code of Criminal Procedure. In her such statement which was recorded on July 31, 2008 she claimed to be aged about 17 years and vividly described as to how the present petitioners, more particularly the petitioner no. 1 and his wife Rupali Saha along with other charge-sheeted accused persons abducted her and by deceitful means induced her to go from her residence to Bombay, with the false assurance of providing a lucrative job, although the actual intent was to compel her to illicit intercourse with other persons against her will. Thereafter having taken her to Bombay they forced her against her will to marry one Palash Sardar by performing fake marriage ceremonies. She was then taken to Kalyani at the house of Palash and then again after a few days from there she was removed to Bombay where the accused persons sold her to one ‘Seth’ knowing that she would be employed and used for the sake of prostitution and was actually sexually abused and forcibly employed in prostitution for commercial purpose. 4. Thus, from the face of the aforesaid evidentiary materials it is not at all possible to conclude that the same on its face value makes out no case under Sections 363/366A/506/120B of the Indian Penal Code. I am also satisfied on the face of the materials on records a prima facie case of an offence punishable under Section 372 of the Indian Penal Code has been made out against the charge-sheeted accused persons. It is well settled that a Magistrate is not bound by the conclusion arrived at by the Investigating Agency as regards to the commission of the offences and it is incumbent upon the Magistrate concerned to find out what offence prima facie has been made out on the basis of the charge-sheeted materials. Such being the position there is no legal impediment on the Court to take cognizance of an offence under Section 372 of the Indian Penal Code and to proceed against the petitioners thereunder even when no charge-sheet is submitted for such offence. 5. Such being the position there is no legal impediment on the Court to take cognizance of an offence under Section 372 of the Indian Penal Code and to proceed against the petitioners thereunder even when no charge-sheet is submitted for such offence. 5. Now, coming to the question of quashing of the charge-sheet on the ground that the victim girl as well as the defacto-complainant by filing affidavits before the Court below and as well as before this Court, claimed that the petitioners are innocent and the allegations made by the defacto-complainant in the FIR as well as by the victim girl in her statement recorded under Section 164 of the Code of Criminal Procedure, are not true and such allegations were made out of misunderstanding and at the time of the alleged incident the victim girl was a major and now the matter has been compromised between themselves mutually, in my considered opinion is not enough for quashing of the impugned charge-sheet. Firstly, the offences for which the charge-sheet has been submitted and the offences made out from the charge-sheet materials are not compoundable. Secondly, the alleged offences are very serious in nature and against the society at large and not merely offences which are purely personal in nature, therefore, any compromise if at all arrived at between the parties would have no legal impact on the fate of the case. Thirdly, for some veiled reasons, both the complainant and the victim girl are now deviating from their statements recorded by the police and by a Judicial Magistrate is no ground for quashing before trial. Furthermore, the victim girl now having denied the correctness of her statement recorded by the Learned Magistrate under Section 164 of the Code by filing an affidavit before this Court as well as the defacto-complainant by giving false statement to a public servant with intent to cause such public servant to use his lawful power for causing injury to innocent make both of them liable for penal consequences and the Learned Court below shall have the liberty to proceed against them in accordance with law. 6. 6. Now, coming to the last question, I find this is a case which was investigated not by the special police officer appointed under Immoral Traffic (Prevention) Act, 1956, but by the regular police and the Investigating Officer of the case was a Sub-Inspector and below the rank of Inspector of Police. In such view of the matter, the investigation was not validly done. Still it would remain open to the Magistrate to direct fresh investigation by the competent Police Officer for fresh investigation as regards to such offences. For the reasons stated above, while the impugned charge-sheet so far as under Sections 3 and 4 of the Immoral Traffic (Prevention) Act, 1955 stands quashed, but the prayer for quashing of the offence punishable under Sections 363/366A/506/120B of the Indian Penal Code is rejected. The Office is directed to communicate this order at once to the Learned Court below for its information and necessary action. The learned advocate of the State is also directed to do the needful. Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.