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2019 DIGILAW 638 (BOM)

ANITA JETHALAL KATARIYA v. STATE OF MAHARASHTRA

2019-03-05

SADHANA S JADHAV

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JUDGMENT : SADHANA S. JADHAV, J. 1. Heard. The Appellant is convicted vide judgment and order dated 4.2.2016 passed by the Learned Additional Sessions Judge, Kalyan in Sessions Case No. 90 of 2015 for the offence punishable under Sections 370 (2) (3) of the Indian Penal Code and sentenced to suffer R.I. for 7 years and to pay fine of Rs.2,000/-, in default, to suffer S.I. for 15 days. The Appellant is also convicted for the offence punishable under Section 3 of the Immoral Traffic (Prevention) Act, 1956 and sentenced to suffer R.I for one year and to pay fine of Rs. 2,000/-, in default, to suffer S.I. for 15 days. The Appellant is also convicted for the offence punishable under Section 4 of the Immoral Traffic (Prevention) Act, 1956 and sentenced to suffer R.I. for two years and to pay fine of Rs.1,000/-, in default, to suffer S.I. for 15 days. The Applicant is also convicted for the offence punishable under Section 5 of the Immoral Traffic (Prevention) Act, 1956 and sentenced to suffer R.I. for three years and to pay fine of Rs.2,000/-, in default, to suffer S.I. for 15 days. All the sentences are run concurrently. 2. Such of the facts necessary for the decision of the appeal are as follows. 3. The case of the prosecution is that Anti Women Trafficking Cell, Thane had received a secret information that the present Appellant runs a brothel in the guise of a beauty parlour in the name and style of Modern Beauty Parlour. The ACP had directed PSI, Crime Branch, Thane to inquire and investigate into the matter. Accordingly, the PSI of Crime Branch, Thane had decided to lay a trap by engaging a decoy customer and investigating the case further. He had accordingly called upon the non-government organization (NGO) - Rescue Foundation at Kandivali and requested them to aid the PSI in conducting the raid. Accordingly, they had deputed one Kamal Punjabi to act as decoy. It is pertinent to note that the money, which was to be used in the said transaction, was also given by Rescue Foundation. On behalf of Rescue Foundation, Nitin Mungekar and Vaishali Doiphode (PW2) were present at the time of raid as they were requested to act as panchas. That Kamal Punjabi was sent to the said parlour along with trap amount. On behalf of Rescue Foundation, Nitin Mungekar and Vaishali Doiphode (PW2) were present at the time of raid as they were requested to act as panchas. That Kamal Punjabi was sent to the said parlour along with trap amount. He was directed to give a predetermined signal, once the money is accepted. Accordingly, he had shown his willingness to engage one of the ladies in the parlour i.e. Ms. X. The raiding party including Vaishali Doiphode had been inside the parlour and they had seen that the decoy customer Kamal Punjabi was in the company of Ms. 'X'. The money was recovered from the present Appellant. PW1 filed FIR on behalf of the State on 9th December, 2014 in respect of the said raid. On the basis of the said report, Crime No. 331 of 2014 was registered at Vitthalwadi Police Station against the present Appellant for the offence punishable under Section 370 (2) of the Indian Penal Code and under Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956. After completion of investigation, the charge-sheet was filed and the case was registered as Sessions Case No. 90 of 2015. The prosecution had examined four witnesses to bring home the guilt of the accused. 4. Pw1 is the complainant Sharad Panje, who was officiating as PSI, Crime Branch and who had carried out the investigation by initiating the raid. It is admitted that he has not taken entry in the station diary or case diary about the information received by him or directions issued by ACP, Anti Women Trafficking Cell. It is not known as to why he had called upon Rescue Foundation to aid him. The decoy customer was nominated by Rescue Foundation. The trap money was given by Rescue Foundation. 5. Pw2 Vaishali Doiphode was also working with Rescue Foundation. She had acted as a panch and was a member of the raiding party. 6. Pw3 is Shakil Shaikh, PI, Crime Branch, Thane. He had conducted the rests of the investigation, arrested the accused and obtained a report under Section 154 of Cr.P.C. from PSI Panje. 7. Pw4 is Pritam Choudhary, who happens to be API, Vitthalwadi Police Station. He had recorded the statements of the witnesses. 8. Pw1 has proved the contents of the first information report. He had conducted the rests of the investigation, arrested the accused and obtained a report under Section 154 of Cr.P.C. from PSI Panje. 7. Pw4 is Pritam Choudhary, who happens to be API, Vitthalwadi Police Station. He had recorded the statements of the witnesses. 8. Pw1 has proved the contents of the first information report. It is pertinent to note that there was no lady constable along with the raiding party, which is one of the mandate for conducting raids under the provisions of Immoral Traffic (Prevention) Act, 1956. There is no inquiry or investigation in respect of the scene of offence. The owner of the said dwelling house was not known. It is not the case of the prosecution that the accused-Appellant was the owner of the said dwelling house, in which she was running a beauty parlour. PW2 has categorically stated that upon inquiry made with the rescued woman, she had disclosed that due to economic stringencies, she was constrained to enter into the profession of prostitution and was working in the parlour. However, the prosecution has not examined Ms. X as a witness and, therefore, the said statement would only amount to hearsay evidence. It is further pertinent to note that PW2 has categorically stated that the women, who were rescued, were sent to Rescue Foundation for the purpose of rehabilitation. Needless to state that Rescue Foundation had vested interest and the investigating team ought not to have called the members of the said organization to act as pancha or aid them in the course of investigation. In this case, it is pertinent to note that Section 15 (2) of the Immoral Traffic (Prevention) Act, 1956 reads as under: "15(2) Before making a search under sub-section (1), the special police officer shall call upon two or more respectable inhabitants (at least one of whom shall be a woman) of the locality in which the place to be searched is situate, to attend and witness the search, and may issue an order in writing to them or any of them so to do." There is violation of the provisions under Section 5(2) of the Immoral Traffic (Prevention) Act, 1956. Section 15(6A) of the Immoral Traffic (Prevention) Act, 1956 contemplates as follows: "The special officer or the trafficking police officer, as the case may be, making a search under this section shall be accompanied by at least two women police officers, and where any woman or girl removed under sub-section (4) is required to be interrogated, it shall be done by a woman police officer and if no woman police officer is available, the interrogation shall be done only in the presence of a lady member of a recognized welfare institution or organization." 9. In the present case, they have kept PW2 present at the time of raid. However, there is no material to show that the statement of rescued woman Ms. 'X' was recorded by PW2 as she does not refer to it. It is submitted that the rescued woman was also not sent for medical examination. The witnesses are all police persons, whose only objective was to see that the raid is successful. 10. Fair and proper investigation alone would lead to a fair prosecution and in the absence of the same, it would be persecution. It is more often seen that the Social Service Branch, Crime Branch, or the Anti Women Trafficking Cell are conducting raids on the basis of the secret information given by the NGO and, therefore, they are obliged to have the members of the NGO to act as panchas and to aid any investigation and further prosecution as well. 11. In the present case, the conviction under section 370(2) (3) cannot be proved as there is no material to show that the women, who were found in the brothel, were trafficked or that they have been detained in the said parlour by using, forcing, coercion, abduction, practicing fraud and, therefore, it cannot be said that the present Appellant had exploited the women, who were allegedly found in the parlour and, therefore, the accused-Appellant deserves to be acquitted under the provisions of Section 370 (2) (3) of the Indian Penal Code. 12. 12. As far as the provisions of the Immoral Traffic (Prevention) Act, 1956 are concerned, it is to be seen that since there is no material on record to show that the Appellant was the owner/licensee/tenant and was in the actual possession of the said premises, it cannot be said for a moment that the Appellant had used the premises for keeping a brothel or allowing the premises to be used as a brothel. Section 3 of the Immoral Traffic (Prevention)Act, 1956 contemplates as under: "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 yeas 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 than five years 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 or 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 is intended too be used 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 extend to five years and also with fine." As far as Section 4 is concerned, the prosecution has failed to examine the rescued woman or any other reliable witness, to prove that the Appellant was earning her living on the earnings of prostitution. Only the rescued woman could have deposed before the Court as to whether the Appellant herein was living on the prostitution in which she has indulged. Even according to the prosecution, it was due to financial stringencies that the said woman was constrained to enter into the said profession. Section 4 of the Immoral Traffic (Prevention) Act, 1956 contemplates as under: "4. Punishment for living on the earnings of prostitution- (1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of [any other person]shall be punishable with imprisonment for a terms which may extend to two year, or with fine which may extend to one thousand rupees, or with both." So far as Section 5 of the Immoral Traffic (Prevention) Act, 1956 is concerned, there is no material to show that the rescued woman was procured, induced for the sake of prostitution. Section 5 of the Immoral Traffic (Prevention) Act, 1956 contemplates as under: "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 consent, for the purpose of prostitution; or (b) induces a [person] to go from any place, with the intent that 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 or [person] to be taken, from one place to another with a view to 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 extend 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 extend to imprisonment for a term of fourteen years." 13. It is in view of the above discussion, that the Appellant herein deserves to be acquitted of all the charges leveled against her. The prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. 14. The learned counsel Mr. Shashikant Choudhari along with the learned counsel Mr. It is in view of the above discussion, that the Appellant herein deserves to be acquitted of all the charges leveled against her. The prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. 14. The learned counsel Mr. Shashikant Choudhari along with the learned counsel Mr. Ashish Satpute has espoused the cause of the Appellant to the best of their capacity and has assisted the Court. He is entitled to the professional fees, which are quantified as per the Rules, to be paid by the High Court Legal Aid Committee. 15. Hence, the following order. ORDER (i) Criminal Application is allowed. (ii) The judgment and order dated 4.2.2016 passed by the Additional Sessions Judge, Kalyan in Sessions Case No. 90 of 2015 is hereby quashed and set aside. (iii) The Appellant is acquitted of the offence punishable under Section 370 (2) (3) of the Indian Penal Code and under Section 3 and 4 of the Immoral Traffic (Prevention) Act, 1956 and the Appellant be released forthwith, if she is not required in any other case. (iv) Fine amount, if paid, be refunded.