A comparison of Section 2(a) and (f) of the Suppression of Immoral Traffic in Women and Girls Act and Section 2(a) and (f) in the I.T.P. Act shows that there are vital distinctions between the definition of the words "brothel" and "prostitution" in the two Acts. As per the definition given in the Suppression of Immoral Traffic in Women and Girls Act, prostitution means a female offering her body for "promiscuous sexual intercourse for hire" whether in money or kind whereas in the I.T.P. Act, the definition given to that word is "the sexual exploitation or abuse of persons for commercial purposes". A reading of the word "prostitution" after the amendment makes it very clear that it is very wide and there need not be any offering of a female for promiscuous sexual intercourse for hire. In Gaurav Jain v. Union of India, AIR 1997 SC 3021 the Supreme Court held as follows:--
"It has been brought within its frame, by amendment, the act of a female and exploitation of her person by an act or process of exploitation for commercial purpose of making use of or working up for exploitation of the person of the women taking unjust and unlawful advantage of trapped women for one's benefit or sexual intercourse. The word "abuse" has a very wide meaning everything which is contrary to good order established by usage amounts to abuse. Physical or mental maltreatment also is an abuse. An injury to genital organs in an attempt of sexual intercourse also amounts to sexual abuse."
Kerala High Court
Baijunath vs Station House Officer on 31 March, 2005
Equivalent citations: 2005 (3) KLT 253
K. Padmanabhan Nair, J.1. These Criminal Revision Petitions and Crl.M.C. No. 2605 of 2003 are filed challenging a common order passed by the Additional Assistant Sessions Judge, Kozhikode dismissing five Criminal Miscellaneous Petitions filed by accused Nos. 4, 6 to 12 and 14 to 16 in S.C.No. 124 of 2002 on the file of that Court contending that there was no sufficient ground for proceeding against them and hence they may be discharged under Section 227 of the Code of Criminal Procedure.
2. Crl.R.P. No. 661 of 2003 is filed by the 14th accused in the case. He along with the 11th accused filed Crl.M.P. No. 171 of 2002 praying that he may be discharged. Crl.R.P. No. 782 of 2003 is filed by accused No. 7. A7 to A10 filed Crl.M.P. No. 198 of 2002 for the very same relief. Crl.R.P. No. 865 of 2003 is filed by the 8th accused in Crl.M.P.No. 198 of 2002. Crl.R.P.No. 938 of 2003 is filed by the 5th accused. Though he had not filed any petition for discharge, he has filed the Criminal Revision Petition challenging the common order passed by the learned Sessions Judge. Crl .R.P.No. 1627 of 2003 is filed by the 12th accused who is also a petitioner in Crl.M.P.No. 183 of 2002. Crl.M.C.No. 2605 of 2003 is filed by the 6th accused who filed Crl.M.P. No. 184 of 2002 in the Court below. Crl.M.C. No. 3297 of 2003 is filed on21.4.2003 by the 11th accused who is the petitioner in Crl.M.P.No. 171 of 2002 for quashing the F.I.R. and all further proceedings against him.
3. One Women Organisation by name Anweshi Women's Counselling Centre filed a complaint before the Hon'ble Chief Minister with a copy of the same to the Commissioner of Police, Kozhikode City, alleging that flesh trade was flourishing in Kozhikode. It was alleged that some rackets under the cover of Beauty Parlours, Ice Cream Parlours and S.T.D. Booths are running the same. It was alleged that these rackets prevail over women especially young girls using various methods and compel them to have illicit intercourse with rich and influential people. It was alleged that the first accused Sreedevi attracted a number of girls and supplied them to various persons. The first accused was running the Beauty Parlour under the name and style of Mahal Beauty Parlour and subsequently that was converted as an Ice Cream Parlour known as R.K.S. Ice Cream Parlour. According to the de facto complainant, this Parlour was one of the main centres of flesh trade. It was alleged that even the students in the University Centre were lured by the first accused and supplied them to business men and others. It was alleged that once a girl falls into the trap, she will not be able to escape from the racket even if she wants to escape.
4. A case was registered as Crime No. 282 of 1997 under Sections 361, 366, 366A, 377, 109 read with Section 34 of the Indian Penal Code and Section 5(1)(a), (c) and (d) of the Immoral Traffic (Prevention) Act, 1956, for short, (the I.T.P. Act). A search was conducted at the R.K.S. Ice Cream Parlour. The first accused was arrested. The police started investigation. The police questioned 221 witnesses. There were 25 suspects. The Police filed the final report against 16 of them. Of the 9 suspects left, only 2 were identified by names. The identity of 7 persons could not be established at all. The stand taken by the Investigating Officer was that there was no sufficient material to arraign the two named suspects also as accused. The charges levelled against the accused were as follows: Accused Nos. 1 and 4 committed the offences punishable under Sections 366, 109 read with Section 34 of the Indian Penal Code and Sections 3(1) and 5(1)(a), (c) and (d) of the I.T.P. Act. Accused 2, 3, 5 to 10 and 13 to 16 committed the offences punishable under Sections 366, 109 read with Section 34 of the Indian Penal Code and Section 5(1)(a), (c) and (d) of the I.T.P. Act. Accused Nos. 1, 4, 11 and 12 committed the offences punishable under Sections 109, 120B read with Section 34 of I.P.C. The other offences alleged against the accused in the F.I.R. were deleted. The learned Magistrate before whom the final report was filed committed the case to the Court of Sessions in accordance with law. The case was subsequently made over to the Additional Assistant Sessions Judge for trial and disposal.
5. When the case was posted for considering whether there were sufficient grounds to proceed against the accused, accused Nos. 4, 6, 7 to 12 and 14 to 16 filed petitions praying that they may be discharged. The learned Sessions Judge considered all the petitions together and by a common order dated 24th January, 2003, dismissed all applications and posted the case for framing charge. The Criminal Revision Petitions and Crl.M.C.No. 2605 of 2003 are filed for quashing that order and discharge the petitioners. The 11th accused Sri. T.P. Dasan filed Crl.M.C.No. 3297 of 2003 for quashing the First Information Report contending that even on the date of filing of that Crl.M.C. no final report was filed.
Crl.M.C.No. 3297 of 2003:
6. This Crl.M.C. is filed not against the common order passed by which the learned Additional Assistant Sessions Judge dismissed Crl.M.P.No. 171 of 2002 filed by the petitioner to discharge him but to quash the F.I.R. alleging that no final report was filed even on the date of filing of his Crl.M.C. So this Crl.M.C. is considered separately.
7. The F.I.R. in this case was filed on 6.8.1997. Accused Nos. 2, 3 and 5 filed Crl.M.C.No. 4422 of 1997 for quashing the F.I.R. It was argued that none of the offences shown in the F.I.R. were disclosed in this case. The matter was elaborately argued and a learned Single Judge of this Court rejected the prayer to quash the F.I.R. and dismissed the Crl.M.C. It was held as follows:-
"It is very difficult to accept the submission made by counsel for the petitioners. On a reading of Annexure II, it cannot be said that there is total lack of material in Annexure II so as to attract commission of a cognizable offence.
....
It is on the basis of Annexure II that Annexure I F.I.R. was registered. Materials are very much there-in Annexure II which will justify registration of the crime. Cognizable offences are also alleged to have been committed by the petitioners."
It was held that the complaint filed by the Anweshi Women's Counselling Centre itself does disclose offences which are cognizable and therefore the investigation is not unwarranted. That order has become final and conclusive.
8. The petitioner filed Crl.M.C.No. 3622 of 1997 under Section 438 of the Code of Criminal Procedure for anticipatory bail. That Crl.M.C. was heard along with Crl.M.C.Nos. 3623 and 3639 of 1997 filed by accused Nos. 12 and 4. All the Crl.M.Cs. were allowed and accused 4, 11 and 12 were granted pre-arrest bail.
9. The petitioner has relied on certain observations made by a learned Single Judge in Crl.M.C.No. 3622 of 1997 while granting anticipatory bail to the petitioner to argue that the F.I.R. is liable to be quashed. It is argued that in Crl.M.C.No. 3622 of 1997 it was found that the F.I.R. filed in this case does not disclose a prima facie case against the petitioner who is the 11th accused.
10. Challenging the common order passed in Crl.M.C.Nos. 3622, 3623 and 3639 of 1997, Smt. Ahalya Sankar, State General Secretary of Bharatiya Mahila Morcha and Smt. Leelavathy, President, Bharatiya Mahila Morcha filed Special Leave Petition (Criminal) No. 601 of 1998 before the Supreme Court. Special Leave was granted and the appeal was numbered as Criminal Appeal No. 867 of 1998. The Apex Court set aside the order passed by the learned Single Judge. In Crl.Appeal No. 867 of 1998 the appellants challenged only the relief of anticipatory bail granted to the 4th accused. The Apex Court set aside the order passed by this Court. It is true that the relief of pre-arrest bail granted to the petitioner was not set aside. But the reasons stated for granting anticipatory bail to accused Nos. 4, 11 and 12 were the same. Allowing the Criminal Appeal, the Apex Court held as follows:-
"After going through the impugned order of the High Court dated 31.10.97 the least that can be said is that the High Court has over-stepped its jurisdiction in invoking the power under Section 438 of the Criminal Procedure Code and in granting anticipatory bail in such offence notwithstanding the materials as noticed by the High Court.
....
We are, however, not impressed by the said submission of the counsel appearing for the accused-respondent. Accordingly, the impugned order of the High Court is set aside."
11. So even though the relief of anticipatory bail granted to the petitioner was not cancelled, the very foundation for granting such relief was shattered by the finding of the Apex Court in Crl.Appeal No. 867 of 1998. It is to be noted that the very same Judge who passed the order in Crl .M.C.No. 3622 of 1997 had subsequently dismissed Crl.M.C. No. 4422 of 1997 finding that there are materials on record to show a prima facie case against the accused.
12. The observations were made by this Court in Crl.M.C.No. 3622 of 1997 was only for the purpose of finding out whether the relief of pre-arrest bail is to be granted or not. In Jayendra Saraswathi Swamigal v. State of Tamil Nadu (2005 (1) KLT 471 (SC) = AIR SCW 2005 323) the Supreme Court has held as follows:-
"...whatever has been stated hereinabove in this order has been so said only for the purpose of disposing of the prayer for bail made by the petitioner. Nothing contained in this order shall be construed as expression of a final opinion on any of the issues of fact or law arising for decision in the case which shall naturally have to be done by the Trial Court seized of the trial."
So there is no merit in the argument advanced by the counsel for the petitioner that in Crl.Mis. Case No. 3622 of 1997, this Court found that no prima facie case was made against the petitioner.
13. There is yet another aspect. The petitioner had filed Crl.M.C.No. 896 of 2000 to quash the final report which was pending as C.P.No. 10 of 1999 on the file of the Judicial First Class Magistrate Court, Calicut at that time. A1l the contentions now raised in this Crl.M.C. were raised by the petitioner in Crl.M.C.No. 896 of 2000 also. It was argued that the statements of the alleged witnesses were not sufficient to connect the petitioner with the crime.
14. A learned Judge who heard Crl.M.C.No. 896 of 2000 dismissed the same. It was held thus:-
"On going through the case diary, I am not in a position to say that the allegations made against the petitioner are groundless and the materials collected by the investigating agency are not sufficient to connect the petitioner with the crime".
After considering the statements of C.Ws.7 and 8, this Court held as follows:-
"The statements of those witnesses, if true, point an accusing finger towards the petitioner. At this stage, this Court cannot assume the jurisdiction either of the Trial Court or the Appellate Court and appreciate the evidence."
15. Crl.M.C.No. 896 of 2000 was filed by the petitioner after the filing of the final report with a specific prayer to quash the final report which was pending as C.P.No. 10 of 1999. That was dismissed on 14th March, 2001. Thereafter the case was committed to the Court of Sessions. It was made over to the Additional Assistant Sessions Judge and is pending before that Court. The petitioner along with A14 filed Crl.M.P.No. 171 of 2002 to discharge them. That petition was heard along with Crl.M.P.Nos. 182/02, 183/02, 184/02 and 198/02 filed by some other accused. The learned Sessions Judge by common order dated 24.1.2003 rejected the prayer made by the petitioner and some other accused and found that there are sufficient grounds for proceeding against the accused persons for framing charges. Suppressing all these facts, this Crl.M.C. is filed alleging that even after the lapse of six years, no final report is filed. It is nothing rut an abuse of process of Court. It is very unfortunate that the petitioner who was the Mayor of Kozhikode Corporation has filed this Crl. Miscellaneous Case making such false averments. This Criminal Miscellaneous Case is liable to be dismissed on that ground alone.
16. The learned counsel appearing for the of petitioner argued that another learned Single Judge of this Court in Crl.M.C.No. 3240 of 1999 filed by A-14 had found that there are no materials to make even a prima facie case against the accused in this case. Crl.M.C.No. 3240 of 1999 was dismissed on 14.9.1999. According to the petitioner, though the Criminal Miscellaneous Case was dismissed, it was held that there are no materials to show a prima facie case. There is absolutely no merit in that contention. A-14 had filed Crl.M.C.No. 3240 of 1999 before this Court for quashing the final report as against him. In paragraph 2 of the order, the learned Judge extracted the contention of the petitioner in that case. The relevant portions reads as follows:
"It is argued by learned counsel for the petitioner that an offence Section 366 I.P.C. is not made out as against the case triable by Sessions. Actually the charge sheet does not make out a case against the petitioner at all. A reading of the charge produced as Annexure A shows that the offence under Section 366 I.P.C. is alleged mainly against accused 1 to 4. The charge as against accused persons 5 onwards (there are in all 16 accused persons) is almost similar, though not identical."
17. A careful reading of the portion extracted above shows that actually the learned Judge was extracting the contentions raised by the petitioner in the Criminal Miscellaneous Case. It was argued by the petitioner in that Crl.M.C. that no offence under Section 366 I.P.C. was made out against the petitioner and there is no case triable by the Court of Sessions. That was an argument raised by the counsel for the petitioner and not the finding recorded by this Court. That is clear from a reading of the order in its entirety. The learned Judge found that the committal Court will be considering the question whether the offence is triable and the petitioner's contention cannot be considered in the Criminal Miscellaneous Case filed under Section 482 of the Code of Criminal Procedure. The learned Single Judge dismissed the Criminal Miscellaneous Case directing the learned Magistrate to grant exemption to the petitioner from personal appearance. So there is no finding in Crl.M.C.No. 3240 of 1999 to the effect that the final report filed in this case does not disclose any offence.
18. On merits also, the petitioner has no case. The prosecution relies on the statements of C.W.7, C.W.16, C.W.21 and C.W.35 to prove the charges levelled against the petitioner. C.W.7 Bindu in her statement had stated that the petitioner and 12th accused Rajagopalan were frequent visitors of the Parlour right from the starting of the same. She had also stated that A1 Sreedevi used to send girls along with A1 1 and A12. The Mahal Beauty Parlour was inaugurated by C. W.21 Sri. T.K. Raveendran. He had stated that A11 and A12 introduced A1 to him and he agreed to inaugurate the Parlour only because of A11 and A12. He had further stated that A11 and A12 along with their spouses were present at the time of inauguration. C.W.16 Muneer was the driver of the 4th accused. His statement is relied on to establish the conspiracy. C.W.35 Jessy had also given statement regarding the connection between A1 and A11. A11 used to call C.W.35 also. So the materials relied on by the prosecution establish a strong prima facie case against the petitioner. So the Crl.M.C. filed by the petitioner is only to be dismissed.
19. Now I shall consider the other Criminal Revision Petitions and Crl.M.C.No. 2605 of 2002 together. Both sides have relied on a number of decisions of Supreme Court in support of their arguments. The counsel appearing for the petitioners have relied on the principles laid down in the following decisions: State of Bihar v. Ratnesh Singh, AIR 1977 SC 2018, R.S. Nayak v. A.R. Anthulay, AIR 1986 SC 2045, Niranjan Singh K.S. Punjabi v. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76, Satish Mehra v. Delhi Administration, (1996) 9 SCC 766, State of Maharashtra v. Priya Sharan Maharaj, AIR 1997 SC 2041, State of M.P. v. S.B. Johari, (2000) 2 SCC 57, Om Wati v. State, (2001) 4 SCC 333, State v. Bangarappa, (2001) SCC (Cri.) 152, Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135 and State of Orissa v. Debendra Nath Padhi, (2003) 2 SCC 711.
20. The learned Special Prosecutor has relied on the following decisions:
State of U.P. v. Udai Narayan, (2000) SCC (Cri.) 74, V.K. Jain v. Union of India, (2000) SCC (Cri.) 302, Ram Kumar Laharia v. State of M.P., (2001) SCC (Cri.) 375, Munna Devi v. State of Rajasthan, JT 2001 (9) SC 438 and Om Wati v. State, (2001) SCC (Cri.) 685.
21. In Om Wati's case (supra) relied on by both sides, it is held that the Trial Court is required to record its reasons only if it decides to discharge the accused. It was also held that the Court need only find out whether there exists sufficient grounds so that a prima facie case is made out. It was also held that the High Court shall not interfere with the Trial Court's order for framing charge unless there is glaring injustice. In Munna Devi's case (supra) the Apex Court held that the High Court has no authority to appreciate the evidence in the manner a Trial Court is required to do.
22. In State of Karnataka v. Muniswami, 1977 (3) SCR 113, the Apex Court has considered the powers of the High Court in the exercise of the inherent powers to quash an order passed by the Trial Court by which the Trial Court had decided to frame charges. In Kunstocom Electronics (1)Pvt. Ltd. v. Gilt Pack Ltd., (2002) 2 SCC 383) and State of A.P. v. Golconda Linga Swamy, (2004 (3) KLT (SC) (SN) 95 = (2004) SCC (Cri.) 1805, the Apex Court held that the High Court shall not assume the role of Trial Court while exercising the powers under Section 482 of the Code of Criminal Procedure while considering the correctness of the order passed by the Trial Court by which it decided to frame charge.
23. The case of the prosecution is that the first accused initially started a Beauty Parlour by name "Mahal Beauty Parlour", which was later on converted as an Ice-Cream Parlour. It was alleged that the first accused while running the Beauty Parlour attracted girls on the pretext that they can study Beautician Course for a ridiculously low fees. According to the prosecution, while normally the fee charged by other Beauty Parlours was Rs. 5000/-, the first accused offered the training for a paltry amount of Rs. 500/- per mensem. The girls lured in such a manner were introduced to the 4th accused and sent along with various persons including the 4th accused to satisfy their lust. The definite case of the prosecution is that the first accused along with accused Nos. 4, 11 and 1.2 hatched a conspiracy to start flesh trade by using the Beauty Parlour as a cover. According to the prosecution, using the funds supplied by 4th accused the first accused took a building belonging to C.W.17 on rent. She paid an amount of Rs. 2,50,000/- which came from the N.R.E. Account No. 99 maintained by 4th accused in Vysya Bank and the same was credited to the S.B. Account maintained by C.W.17 Devadasan, the landlord of the building. This Beauty Parlour was used as a cover by a number of persons including A2 to A10 and A13 to A16 to procure girls to satisfy their lust. It was also alleged that the first accused used to collect Rs. 3,000/- per girl for each session and she used to give Rs. 1,000/- each to the girls and used to pocket the balance amount. The prosecution has also got a case that if any girl who once falls into the trap objects, the first accused used to threaten or blackmail her and compel her to go along with persons. According to the prosecution, A1, A4, A11 and A12 hatched a conspiracy to procure girls for the purpose of prostitution and as a part of that conspiracy A1 and A4 took the building and used the same as a brothel. To cover up the operation they used it as an Ice Cream Parlour.
24. The prosecution case is that Accused Nos. 2 to 10 and 13 and 16 were the regular customers of the first accused. The police has also got a case that in addition to the 16 accused, the witnesses had spoken about 9 other persons. Two of them alone were named and others were referred to either by their designation or as persons who were present at some specific place. The two named persons are the former Industries Minister Sri. Kunhalikutty and one Advocate Sri. Moidu. The others were described as the person who was present, in the house of the Customs Office, the person who accompanied Joseph, Telephone Engineer, the person present in the Malabar Palace, the black man and the two persons who accompanied the 15th accused-Rafeeque etc. As I have already stated, after questioning 221 persons, the final report was filed on 2.12.1998.
25. Accused Nos. 7 to 10, 11, 12, 14 to 16 filed petitions to discharge them on the ground that there are no materials to proceed against them. It was argued that even if the uncontroverted statements of the witnesses relied on by the prosecution are accepted as such, no offences as alleged in the Final Report are made out against the petitioners.
26. The prosecution relies on the statements of C.W.7 Bindu, C.W.8 Rejula, C.W.9 Baby, C.W.10 Roselin, C.W.11 Rejina, C.W.17 Devadas, C.W.14 Manager of Vysya Bank and C.W.16, the driver of the 4th accused to prove the charges levelled against A1 and A4. C.W.7 to C.W.11 are ladies, who, according to the prosecution, fell into the trap of the first accused and they were supplied to various persons. The prosecution also relies on the statements of C.Ws.7, 21, 16 and 35 to establish the charges of conspiracy alleged against A1, A4 and A11. C.W.17 Devadas is the landlord of the shop room in which the first accused started the Parlour. According to the prosecution, an amount of Rs. 2,50,000/- advanced by Sreedevi to take the shop room on rent came from the N.R.E. Account of the 4th accused. C.W.21 was the Mayor of Kozhikode Corporation at the relevant period. His statement is relied on to establish that accused No. 1 was introduced to him by A11 and A12 and he inaugurated the Beauty Parlour because of his connection with accused 11 and 12 who were the ex-Mayors of the Corporation. The statements made by C.Ws.16 and 35 are also relied on by the prosecution to prove the conspiracy. It is well settled position of law that it is difficult to prove conspiracy by adducing direct evidence. It is not necessary that each of the conspirators must know what others must do. It may not be possible for the prosecution to produce direct evidence to prove the conspiracy. If the uncontroverted statements of C.Ws.7, 16, 17, 21, 35 and 43 are accepted as such, it makes a strong prima facie case of conspiracy against accused Nos. 1, 4, 11, and 12. Whether the prosecution will be able to secure a conviction based on their evidence is not a matter to be considered at this stage.
27. The statements of C.Ws.7 to 11 are relevant in considering whether the offence under Sections 261, 365 Crl.P.C. and Section 5(1)(a), (c) and (d) of the I.T.P.Act are made out in this case. C.W.7 stated that she was a student of beautician course in a Beauty Parlour by name Better Half for about three months and thereafter she joined the Mahal Beauty Parlour run by the first accused. She stated that the first accused used to force the girls working in the Beauty Parlour to go along with men. She had stated that because of the frequent visit of strangers, the people in the locality quarrelled with the first accused. She had also stated that the customers of the first accused used to come to the Beauty Parlour to take girls to their place of choice and also selecting girls from the new comers. She had also stated that the first accused used to collect Rs. 3000/-from every persons and only Rs. 1000/- was given to the girls.
28. C.W.8 Rejula was working in a real estate office. She left the service of the real estate office and joined the Mahal Beauty Parlour because of the first accused. She had also stated that the first accused used to seduce and compel girls to go along with strangers and used to collect money from them. She had also stated that if any girl refused to go along with the men the first accused used to scold them or threaten them. She had stated that she was compelled to go along with men because of her financial constraints.
29. C.W.9 Baby was working as an agent in Peerless Company. She went to the Parlour on a few occasions and she also fell into the trap. She was sent along with a person by name Kuttikka. He paid her an amount of Rs. 300/- and told her that he had already paid the necessary amount to the first accused. Similar statements were given by C.Ws.10 and 11 also.
30. If the statements of C.Ws.8 and 10 are accepted, the same will show that they had gone to the house of the 5th accused and had sexual intercourse with him. The statement of C.W.9 shows that one day the 6th accused Basheer took her to the clinic of C.W.27 in a jeep. She had further stated that she went along with A6 as per the directions of the first accused. Though C.W.9 stated that she had gone to the clinic of C.W.27, a combined reading of the statements of the witnesses shows that actually C.W.9 was taken to the quarters of C.W.27 during day time. The statement shows that on two occasions, A6 came to his quarters with two different girls. Of course, he had stated that one of the girls taken by A6 had a skin problem.
31. The learned counsel appearing for the 6th accused has argued that taking a patient to a Doctor for the treatment of skin problem can never be considered as an offence under Section 366 or under any of the provisions in Section 5(1) of the I.T.P. Act. It is true that C.W.27 had stated that one of the girls who came to his quarters had some skin problem. But there is absolutely nothing in the statement of C.W.27 to show that A6 took C.W.9 as a patient for treatment. On the other hand, the statement shows that it was for having illicit intercourse. He had further stated that A6 may have sexual intercourse with those girls. Likewise, the statements of C.Ws.7 and 10 shows that A7 James Joseph, who is the petitioner in Crl.R.P. No. 782 of 203 and A8 K.T. Joseph @ Ouseppachan who is the petitioner in Crl.R.P. No. 866 of 2003 were also customers of the Parlour run by the first accused. C.W.7 had stated that she was sent along with A7 in a White Maruti Car to a hotel near the Airport and she had sexual intercourse with A8. The statement given by C.W.10 corroborates the statements given by C.W.7. C.W.10 had stated that each of them was given Rs. 500/- and they were told that the balance amount was given to the first accused. The statements given by C.W.7 show that she went along with A4 as directed by the first accused in an Ambassador Car to the house and had illicit intercourse with him and she was given Rs. 1,500/- by A4. If the uncontroverted statements of the witnesses are accepted as such, it shows that the first accused had collected amounts from various persons for sending girls with them. She used to pay a portion of the same to the victims and pocketed the balance amount. Whether these witnesses will stick on to their statements and whether their evidence is sufficient to warrant a conviction are matters to be considered by the Trial Court and not by this Court.
32. It is argued by the learned counsel appearing for the petitioners that there is of misjoinder of charges. It is argued that offences punishable under Sections 366, 109 read with Section 34 I.P.C and under Sections 3(1) and 5(1)(a), (c), (d) of the I.T.P. Act are alleged against A1, A4. Against A11 and A12, offences punishable under Section 109, 120B read with Section 34 I.P.C. are alleged, but against the other accused offences punishable under Sections 366, 109 read with Section 34 I.P.C. and Section 5(1)(a), (c) and (d) of the I.T.P. Act are alleged. It is argued that there is no allegation against A2, A3, A5 to A10, A13 to A16 that any of them committed the offences punishable under Sections 109, 120B I.P.C. or 3(1) of the I.T.P. Act. It is to be noted that the specific case of the prosecution is that accused Nos. 1, 4, 11 and 12 started the Parlour to hire girls and they attracted young girls giving them false promises and money and used them as victims in flesh trade and A2, A3, A5 to 10, A13 to A16 were customers in the flesh trade. The prosecution has got a case that A11 and A12 were parties to the conspiracy and also abetted the offence. The materials on records prima facie show that atleast on some occasions, A11 and A12 were present in the rooms wherein the girls were brought by other persons for illicit intercourse. The prosecution also relies on the statements of C.Ws.16 and 35 to prove that A1, A4, A11 and A12 used to meet secretly. C.W.35 overheard the conversation made by A11. A11 also used to call C.W.35. So the materials on record show that the offences alleged against all the accused are so interconnected and cannot be considered as separate or distinct transactions. A series of transactions were alleged which form part of a major offence. It is not possible to bifurcate one of such acts and try separately from the others. The nature of the evidence to be adduced against all the accused is one and the same. So there is no merit in the contention raised by the counsel that there is misjoinder of charges.
33. In Satwant Singh v. State of Punjab, AIR 1960 SC 266 the Supreme Court has considered Section 239(b) of the Code of Criminal Procedure and held that persons accused of several offences and persons accused of abetment can be tried together. In State of A.P. v. Ganeswara Rao, AIR1963 SC 1850, a Bench of three Judges of the Supreme Court has considered Sections 239, 233, 234, 236 of the Code of Criminal Procedure, 1898 corresponding to Sections 223, 218, 219, 220, 221(1) of the present Code. It was held as follows:-
"On a plain construction of the provisions of Section 239 it is open to the Court to avail itself cumulatively of the provisions of the different clauses of Section 239 for the purpose of framing charges and charges so framed by it will not be in violation of the law, the provisions of Sections 233, 234 and 235 notwithstanding."
34. Learned counsel appearing for the petitioners have argued that even if the prosecution case is accepted as such, no offence under Section 366 of the Indian Penal Code is made against the accused in this case. They have relied on the decisions reported in Ramesh v. State of Maharashtra, AIR 1962 SC 1908, Ram Murti v. State of Haryana, AIR 1970 SC 1029, Gaurav Jain v. Union of India, AIR 1997 SC 3021 and Rajendra v. State of Maharashtra, (2002) 7 SCC 721.
It is argued that there is nothing on record to show that any of the alleged victims in these cases were minors and they were kidnapped or abducted from the custody of the legal guardians. To convict a person for an offence under Section 366 of the Indian Penal Code, it is not necessary that there must be kidnapping or abduction as defined in Sections 359 to 361 or 362 of the Indian Penal Code invariably in all these cases. There are other cases also which come within the purview of Section 366. Section 366 I.P.C. reads as follows:-
"Kidnapping, abducting or inducing woman to compel her marriage, etc.-- Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid."
35. A reading of Section 366 shows that it has got two parts. To attract the offence under the first part, there must be kidnapping or abduction. Section 359 of the Indian Penal Code defines kidnapping. Section 360 deals with kidnapping from India. Section 361 deals with kidnapping from lawful guardianship. Section 362 I.P.C. deals with abduction. Section 362 reads as follows:-
"Abduction.-- Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person."
The ingredients of kidnapping and abduction are entirely different and these are two distinct offences. But the question of kidnapping or abduction will arise only if the case comes within the first part of Section 366. Originally Section 366 had only one part. The second paragraph has been added by the Penal Code (Amendment) Act, 1923. A reading of the entire section shows that these two paragraphs are independent of each other. To attract the second paragraph, it must be shown that the accused either by criminal intimidation or abuse of authority or any other method of compulsion induces a woman to go from any place with an intent that she may be knowing that it is likely that she will be forced or seduced to illicit intercourse with another person. The three circumstances mentioned are criminal intimidation as defined in Section 503 of the Indian Penal Code or of abuse of authority or any other method of compulsion. The second paragraph was added in order to include criminal intimidation, abuse of authority or other method of compulsion also within the definition of abduction in cases where that offence is perpetrated for the purpose of procuring woman for immoral purposes. It is to be noted that Section 366 is not directed against seduction, that is to say, persuading a woman to surrender her chastity or elopement, which is running away of a woman married or unmarried with a lover. It is directed against seduction with coercion or under circumstances when she is in the power of the seducer and when her consent would be nothing more than a mere submission to the will of the seducer. The same considerations apply to kidnapping for the purpose of forcible marriage or forcible intercourse, which lust is manifestly the most egregious form of the offence. The person holding such intercourse will also be guilty of abetment or of the principal crime according to the nature of his participation.
36. The prosecution case is that the first accused hatched a conspiracy with A4, A11 and A12 with the specific intention of seducing young ladies so as to force them to have illicit intercourse with various people. The first accused attracted young ladies and compelled them to go away with A2, A3, A5 to A10, A13 to A16. According to the prosecution, these girls were compelled to go with the accused persons against their will and under various circumstances such as poverty, promise of bright future etc. Whether those materials are sufficient to warrant a conviction is a matter to be considered by the Trial Judge.
37. In this connection, it is very pertinent to note that most of the decisions referred to by the learned counsel appearing for the petitioners are rendered in appeals or revisions from conviction after trial. It is to be noted that of the 16 accused in the case, only 6 persons had challenged the decision taken by the learned Assistant Sessions Judge to frame charge. In case any decision which affects the merits of the case is taken, that is likely to prejudice those accused who have not approached this Court. Going by the materials on record, it is seen that the prosecution case does not rest upon kidnapping or abduction alone. The prosecution, has got a definite case that A1 and A4 used ether methods of compulsion to induce victims to go to the house of the other accused for the definite purpose of compelling them to have illicit intercourse with the other accused. So prima facie, the materials on record show that an offence under the second paragraph of Section 366 of the Indian Penal Code is made out in this case. Of course, the de facto complainant has also got a case that atleast one of the victims was a minor at the relevant time. It is also to be noted that against most of the accused, the prosecution had alleged offence under Section 109 I.P.C. A person who is guilty of abetment is also equally responsible. How far the materials relied on by the prosecution that these accused abetted the crime is sufficient to warrant a conviction is a matter which is to be decided by the Trial Judge. So it is not possible to accept the argument advanced by the petitioners that even if the entire prosecution case is accepted as such no offence under Section 366 is made out in these cases.
38. The prosecution has alleged that A1 and A4 committed an offence under Section 3(i) of the I.T.P. Act, 1956. Neither the first accused nor the 4th accused had challenged the order passed by the Sessions Judge. So I am not considering whether the materials on record is sufficient to frame charge under Section 3 of the I.T.P. Act against A1 and A4.
39. The prosecution has alleged the offence under Section 5(1)(a), (c), (d) of the I.T.P. Act against the accused. It is argued that by the learned counsel appearing for the petitioners that no offence under Section 5(1)(a), (c) or (d) of the I.T.P. Act is made out in this case.
40. Originally, the Parliament passed the Suppression of Immoral Traffic in Women and Girls Act in the year 1956. Section 2(a) of the Act defines brothel. Section 2(a) reads as follows:-
""brothel" includes any house, room, (conveyance) or place, or any portion of any house, room (conveyance) or place, which is used for purposes of prostitution for the gain of another person or for the mutual gain of two or more prostitutes;"
Section 2(b) defines girl. Section 2(f) defines the word "prostitution". Section 2(f) originally stood was as follows:-
"(f) "prostitution" means the act of a female offering her body for promiscuous sexual intercourse for hire, whether in money or in kind."
Section 2(f) was substituted by Section 2 of Act 46 of 1968 with effect from 2.10.1979. It reads as follows:-
" "prostitution" means the act of a female offering her body for promiscuous sexual intercourse for hire, whether in money or in kind, and whether offered immediately or otherwise, and the expression "prostitute" shall be construed accordingly."
Subsequently, the name of the Act was changed as the Immoral Traffic (Prevention) Act, 1956. By Section 3 of the Suppression of Immoral Traffic in Women & Girls (Amendment) Act, 1986 (Act 44 of 1986) the nomenclature of the Act has been changed with effect from 26th January, 1987. Now it stands as the Immoral Traffic (Prevention) Act, 1956. Section 2(a) of the I.T.P. Act defines brothel. It reads as follows:-
"(a) "brothel" includes any house, room (conveyance) or place or any portion of any house, room (conveyance) or place, which is used for purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes."
Section 2(aa) defines the word "child". Section 2(ca) defines the word "major" and Section 2(cb) defines "minor". Section 2(f) defines the word "prostitution". It reads as follows:-
" "prostitution" means the sexual exploitation or abuse of persons for commercial purposes, and the expression 'prostitute' shall be construed accordingly."
41. A comparison of Section 2(a) and (f) of the Suppression of Immoral Traffic in Women and Girls Act and Section 2(a) and (f) in the I.T.P. Act shows that there are vital distinctions between the definition of the words "brothel" and "prostitution" in the two Acts. As per the definition given in the Suppression of Immoral Traffic in Women and Girls Act, prostitution means a female offering her body for "promiscuous sexual intercourse for hire" whether in money or kind whereas in the I.T.P. Act, the definition given to that word is "the sexual exploitation or abuse of persons for commercial purposes". A reading of the word "prostitution" after the amendment makes it very clear that it is very wide and there need not be any offering of a female for promiscuous sexual intercourse for hire. In Gaurav Jain v. Union of India, AIR 1997 SC 3021 the Supreme Court held as follows:--
"It has been brought within its frame, by amendment, the act of a female and exploitation of her person by an act or process of exploitation for commercial purpose of making use of or working up for exploitation of the person of the women taking unjust and unlawful advantage of trapped women for one's benefit or sexual intercourse. The word "abuse" has a very wide meaning everything which is contrary to good order established by usage amounts to abuse. Physical or mental maltreatment also is an abuse. An injury to genital organs in an attempt of sexual intercourse also amounts to sexual abuse."
It was also held by the Supreme Court that the women found in flesh trade should be viewed more as victims of adverse socio economic circumstances rather than offenders in our society. If there is sexual exploitation or abuse, that will amount to prostitution.
42. The definite prosecution case is that the girls were offered employment in the Parlour and they were forced to go along with various persons and every time the first accused used to collect a minimum amount of Rs. 3,000/- and used to pay Rs. 1,000/- to the victims and pocketed the balance amount. There are also materials to prima facie show that some of the accused used to pay amounts such as Rs. 500/- to 1,000/- to the girls in addition to the amount paid to the first accused. If a person procures or attempts to procure a person with or without his consent for prostitution, that is an offence punishable under Section 5(1)(a) of the I.T.P. Act. If a person takes or attempts to take or causes a person to be taken from one place to another with a view to his carrying on or being brought up to carry on prostitution it is an offence punishable under Section 5(1)(c) of the Act. If a person causes or induces another person to carry on prostitution, that is an offence punishable under Section 5(1)(d) of the Act. According to the prosecution, many of the accused used to take the girls for sexual exploitation and they were presented to other persons also. Whether the witnesses will give evidence in terms of the statement given under Section 161 so as to warrant a conviction is a matter to be decided by the Trial Court.
43. Learned counsel appearing for the petitioners relied on the decisions reported in Jacob v. State of Kerala, 1971 KLT 53, Cherian v. State, 1973 KLT 15 and Shanta v. State of Gujarat, AIR 1967 Guj. 211 in support of their arguments. All the above cited decisions were rendered prior to 25.1.1987 by which vital changes were brought out to the definition of the words "brothel" and "prostitution". So it is not possible to accept the case of the petitioners that no offence is made out in view of the principles laid down in those decisions.
44. Learned counsel appearing for some of the petitioners also relied on Sinu Sainudeen v. S.I. of Police, 2002 (1) KLT 298 and argued that the Sub Inspector of Police has no authority to conduct search or register a case. The principles laid down in this case can have no application to the facts of this case. As I have already stated, the materials on record make out a prima facie case under Section 5(1)(a), (c) and (d) of the I.T.P. Act. So there is absolutely no merit in the contention raised by the petitioners that no offence under Section 5(1)(a), (c) and (d) of the I.T.P. Act is made out in this case.
45. It is argued that in Crl.M.C.Nos. 3622 of 1997 and 3240 of 1999 this Court found that there are no materials on record even to make a prima facie case against the accused. I had already discussed that point while considering Crl.M.C.No. 3297 of 2003 and rejected those contentions. Those findings are applicable to these cases also. 46. The learned counsel appearing for the petitioners has strenuously argued before me that the investigation conducted in this case is totally unfair. It is argued that the statements of the witnesses relied on by the prosecution show that apart from the petitioners, very powerful persons were also involved in the commission of the offence. The main attack is against the non-inclusion of Sri. P.K. Kunhalikutty, the former Minister as one of the accused in the case. It is argued that some of the petitioners and 13th accused were made as accused on the statements made by Rejina and in her statement, she had implicated Sri. Kunhalikutty also. It is argued that some other witnesses also implicated him but because of the political influence exerted by him, he was not made an accused. If the investigation is not fair that is a matter which the petitioners can point out at the time of trial. Even accepting the argument of the petitioners that a person who ought to have been made an accused is excluded, that is not a ground to hold that the decision taken by the learned Assistant Sessions Judge to frame charge against the petitioners is illegal. The effect of any illegality committed during the investigation is a matter to be considered by the learned Sessions Judge at the time of trial. So that is also not a ground to set aside the impugned order.
47. Smt. Ajitha, who is the President of the Anweshi Women's Counselling Centre has filed petitions in all these cases to implead her as an additional respondent in this proceedings. The prayer was strongly opposed by the petitioners in all these proceedings. Though I have not allowed the prayer of impleading as such, I had permitted the petitioner to put forward her case also. So I shall consider the contentions raised by Advocate Sri. K.S. Madhusoodanan, counsel appearing for the petitioner in the impleading applications. The main contention raised by Advocate Sri. K.S. Madhusoodanan is that this Court shall order further investigation of the case by the Central Bureau of Investigation under Section 173(8) of the Code of Criminal Procedure. It is also argued that the learned Magistrate went wrong in not taking cognizance against Sri. P.K. Kunhalikutty and hence a direction may be issued to the Magistrate to take cognizance against him also. The learned State Attorney, Sri. P.C. Iype vehemently argued that the request made by the petitioner is an abuse of process of Court. It is argued that the petitioner had approached all the Courts in this country and the request was turned down by all the Courts including the Supreme Court and hence such a request cannot be reconsidered by this Court in this proceedings.
48. At the outset, I may state that the prayer made by the counsel for Smt. Ajitha is far beyond the scope of these proceedings. These proceedings arise from a decision taken by the Additional Assistant Sessions Judge to frame charges against the accused in the Sessions Case. Some of the accused have filed these Criminal Revision Petitions and Criminal Miscellaneous Case challenging that decision. In these proceedings, this Court need only consider whether that decision is legal and proper.
49. While the investigation of the case was going on, Anweshi Women's Counselling Centre had filed O.P.No. 18484 of 1997 before this Court for a direction to hand over investigation of this case to the Central Bureau of Investigation. One Kolakkadan Moosa Haji filed O.P.No. 18520 of 1997 for the very same relief. Another organisation by name People's Union of Civil Liberties Kerala State Committee represented by Advocate Pouran, Manjeri filed O.P.No. 19439 of 1997 for the very same relief. These three Original Petitions were heard together. By a common judgment dated 30.7.1998, a learned Single Judge of this Court dismissed all the three Writ Petitions. The petitioner in O.P.No. 18520 of 1997 filed W.A.No. 1630 of 1998. A Division Bench of this Court dismissed that Writ Appeal at the time of admission stage. Challenging the same judgment, Anweshi Women's Counselling Centre filed W.A.No. 1717 of 1998. That was also dismissed by the Division Bench. Challenging the decisions of this Court, Sri. Kolakkadan Moosa Haji filed S.L.P. No. 15787 of 1998 before the Supreme Court. Anweshi Women's Counselling Centre also filed Special Leave Petition (Crl.) No. 3725 of 1998 before the Supreme Court. The Supreme Court directed the Deputy Inspector General of Police as well as the Inspector General of Police to file affidavits. They filed affidavits. In the meanwhile, the investigation of the case was completed and the police filed a final report in the case arraigning 16 accused. The de facto complainant filed Crl.M.P.No. 124 of 1999 under Section 173(8) for further investigation. That petition was allowed. Subsequently, the police resubmitted the same stating that only 16 accused originally arraigned were involved in the commission of the offence. The learned Magistrate accepted that final report, converted it as a C.P. and passed an order and issued summons to 16 accused in the C.P. In the meanwhile, Smt. Ajitha again filed an application as Crl.M.P.No. 4213/99 before the learned Magistrate not to accept the final report and order further investigation under Section 173(8). The learned Magistrate dismissed that application holding that the final report was accepted long prior to the filing of that petition and cognizance was already taken. Challenging that order, Smt. Ajitha filed Crl.M.C.No. 3246 of 1999 before this Court. While the case was pending here, the Special Leave Petition pending before the Supreme Court came up for hearing. The Supreme Court adjourned the hearing of the S.L.P. to be heard after the dismissal of Crl.M.C.No. 3246 of 1999. This Court by order dated 4th March, 2003, disposed the Crl.M.C. The operative portion of the order reads as follows:--
"During further investigation no materials could be collected, according to the learned Director General of Prosecutions, to indicate that those persons mentioned by the petitioner in the petition had involvement in the commission of the crime. The further report was filed by the investigating agency on completing further investigation. After that, another application was filed by the petitioner for conducting further investigation and there is no reason for giving direction to the investigating agency to conduct a second further investigation in the crime."
Challenging that order, the de facto complainant filed unnumbered S.L.P. (Crl.) of 2003 before the Supreme Court with Crl.M.P.No. 8331 of 2001, the petition to condone the delay. The Supreme Court condoned the delay. All the three Special Leave Petitions were heard together. The Apex Court dismissed the three Special Leave Petition holding that there is no illegality in the judgment of this Court. So the prayer for further investigation by the Central Bureau of Investigation was turned down by this Court as well as the Apex Court.
50. Thereafter, three more Writ Petitions for the very same reliefs were filed before this Court. One T.R. Devan alias Vasudevan filed W.P.(C) No. 33821 of 2004, one Edwin Thomas P.T. and A.K. Fasai jointly filed W.P.(C) No. 34015 of 2004 . All India Democratic Women's Association represented by its Secretary filed W.P.(C) No. 34301 of 2004 before this Court. A Division Bench of this Court heard these three Writ Petitions together and dismissed those Writ Petitions. While dismissing the Writ Petitions, this Court observed as follows:--
"With the dismissal of S.L.Ps. 3725 and 15787 of 1998, the statements made by the said officers in their affidavits dated 4.1.1999 and 18.1.1999 stand accepted. That is a final verdict of the Supreme Court that the state police had acted truly and diligently requiring no intervention by C.B.I."
This Court found that by the dismissal of the S.L.Ps. by the Supreme Court, the averments made by the Inspector General of Police and Deputy Inspector General of Police were accepted and that was a final verdict regarding further investigation or investigation by a different agency. Though the petitioner is not a party to those three Writ Petitions, in view of the Division Bench decision of this Court as well as the Supreme Court, Smt. Ajitha cannot be allowed to raise the same contention again in these proceedings.
51. Sri. K.S. Madhusoodanan, learned counsel appearing for the petitioner, strenuously argued before me that even if no further investigation or investigation by a different agency is possible, the learned Magistrate ought to have taken cognizance against Sri. Kunhalikutty also in view of the statements made by the witnesses. It is argued that the failure on the part of the Magistrate not to take cognizance against him is illegal and this Court may direct the Magistrate to take cognizance against him also.
52. No matter is pending before the Magistrate. The case was already committed to the Court of Sessions and the same is ripe for trial also. Sri. Kunhalikutty is not a party to these proceedings. So I am not considering that question on its merits also.
53. There is yet another aspect. After the amendment to the Code of Criminal Procedure in the year 1973, the Magistrate is taking cognizance of the "offence" and not the "accused". In case during trial the evidence recorded shows that any person not being the accused appears to have committed the offence such person also can be tried along with other accused. In Joginder Singh v. State of Punjab, AIR 1979 SC 339, it was held as follows :-
"Both under Section 193 and Section 209 the commitment is of 'the case' and not of 'the accused' whereas under the equivalent provision of the old Code viz.: Section 193(1) and Section 207A it was 'the accused' who was committed and not 'the case'. Under Section 193 read with Section 209 when a case is committed to the Court of Session in respect of an offence the Court of Session takes cognizance of the offence and not of the accused and once the Sessions Court is properly seized of the case as a result of the committal order against some accused the power under Section 319(1) can come into play and such Court can add any person, not an accused before it as an accused and direct him to be tried along with the other accused for the offence which such added accused appears to have committed from the evidence recorded at the trial."
54. In Sri. Mahant Amar Nath v. State of Haryana, AIR 1983 SC 288, the Supreme Court has held that the person whose name is given by the witness in Section 161 statement can be made an accused invoking the power under Section 319 of the Code of Criminal Procedure even if the police has not made him an accused.
55. In Narayanan Nambiar v. State of Kerala, 1987 (1) KLT 871, a learned Single Judge of this Court considered these aspects elaborately and held that the powers under Section 319 can be invoked against persons and no fresh committal is necessary. It was also held that persons dropped by the police during investigation can be roped in under Section 319(1). It was held as follows:-
"The only conditions required for the applicability of 3.319(1) are: (1) it must appear from the evidence during inquiry or trial that such person appears to have committed the offence and (2) the offence is one for which he could be tried along with the other accused. 'Any person not being an accused' cannot exclude from its operation a person who has been released by the police under Section
169. Even persons dropped by the police during investigation could be roped in under Section 319(1) if evidence showing their involvement comes before Court."
In Delhi Municipality v. Ram Kishan, AIR 1983 SC 67, the Apex Court found that even if the final report against a person who was the original accused was quashed by the High Court in exercise of the powers under Section 482 of the Code of Criminal Procedure, he can be again tried invoking the powers under Section 319 of the Code of Criminal Procedure.
56. In Sohan Lal v. State of Rajasthan, AIR 1990 SC 2158, it was held that the persons who were discharged cannot be proceeded under Section
319. It was held as follows:
"The provisions of Section 319 have to be read in consonance with the provisions of Section 398. Once a person is found to have been the accused in the case, he goes out of the reach of Section 319. Whether he can be dealt with under any other provisions of the Code is a different question. In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision under Section 398 may not be lost sight of. Once a person was an accused in the case he would be out of reach of Section 319. The crucial words in Section 319 are 'any person not being the accused'."
A reading of Section 319 of the Code of Criminal Procedure shows that Section 319 confers power on the Court to proceed against any person to be guilty of an offence. Such power can be exercised by the Court suo motu or on application by the prosecution or de facto complainant or by the accused. But that power should be exercised very sparingly. In Michael Machado v. C.B.I., (2000) 3 SCC 262, the Supreme Court held that the evidence should indicate reasonable prospect of conviction of such other persons. A mere suspicion or his/their involvement in the offence is not enough. In Krishnappa v. State of Karnataka, 2004 (3) KLT 460, the Apex Court held as follows:
"The power is discretionary and should be exercised only to achieve criminal justice and that the Court should not turn against another person whenever it comes across evidence connecting that other person also with the offence. This Court further held that a judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. The Court, while examining an application under Section 319 Cr.P.C. has also to bear in mind that there is no compelling duty on the Court to proceed against other persons. In nut shell, it means that, the exercise of discretion under Section 319 Cr.P.C. all relevant factors, including the one noticed above, have to be kept in view and an order is not required to be mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused."
Since there are necessary safeguards in the Code itself to meet such contingencies, there is no need to issue any direction to the Magistrate in these proceedings. I make it clear that I have not considered whether it is a fit case in which the learned Sessions Judge shall invoke the powers vested in him under Section 319(1) of the Code of Criminal Procedure.
57. There is no merit in the Crl.Revision Petitions and Crl.Miscellaneous Cases and they are only to be dismissed.
In the result, the Crl.Revision Petitions and Crl.M.Cs. are dismissed.
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