08 Jun 2121

The ingredients of the Section 5(1) (a) of The Immoral Traffic (Prevention) Act, 1956 must be invoked for conviction of an accused - Bombay High Court

Case : Anmol S/O Damu Shejul v. the State of Maharashtra with Dnyaneshwar Sarjearao Jarhad v. State of Maharashtra Criminal Writ Petition No. 1688 of 2020 and Criminal Writ Petition No. 1708 of 2020

Court : Bombay High Court

Bench : Justice Smt. Vibha Kankanwadi

Decided on : 08 Jun 2121

Relevant Statutes

Article 227 of the Indian Constitution

Section 227 & 482 of Code of Criminal Procedure, 1973

Section 5(1) (a) of the Immoral Traffic (Prevention) Act, 1956

Brief Facts and Procedural History

1. An order was passed by the learned Additional Session Judge, Aurangabad on 15.12.2020 in which the court rejected the application of discharge under Section 227 of Code of Criminal Procedure, 1973. Further, A Writ Petition has been preferred by the original Accused No.7, 8, 9 has challenged the order passed by the Additional Session Judge. The petitioner also challenged the order by invoking the inherent powers of the High Court under Section 482 of Code of Criminal Procedure, 1973 and Constitutional power under Article 227 of Indian Constitution.

The Issues of the Case

Whether the Accused has invoked the ingredients of Section 5(1) (a) of The Immoral Traffic (Prevention) Act, 1956?

Whether the Petitioners can invoke the inherent powers of the High Court under Section 482 of Code of Criminal Procedure, 1973 and Constitutional power under Article 227 of Indian Constitution?

The Observations of the Court:

1. The Honourable Bombay High Court observed that as per the facts, a secret information was received. Panchas and the fake customers were arranged and further the fake customers were given instructions according to which they acted and later the police entered the house. If we conclude on the basis of chats, we cannot come to the conclusion that the girls would have been procured. The statements made by the fake customers before the panchas and other members of the raiding party cannot be taken as a statement under Section 161 of Code of Criminal Procedure (1973).

2. The Honourable Bombay High Court observed that statements of the victims have not also been recorded under Section 161 of Code of Criminal Procedure, 1973. In one of the judgment referred i.e. Eimn Abdulamir Jassem Al- Alaf vs. The State of Maharashtra (Criminal Petition no. 564 of 2018), It was held that, In order to bring the case under Section 5(1) (a) of the Immoral Traffic (Prevention) Act, 1956 Act, the prosecution should come with that the petitioners has taken the girls from one place to another to carry prostitution and also there are two main ingredients i.e. causing and inducing which should be fulfilled.

3. In Another Judgment, State of Tamil Nadu by Inspector of Police Vigilance and Anti- Corruption  vs. N. Suresh Rajan & Others ((2014) 11 SCC 709), it was held that the Court should consider whether there is ground for presuming that the offence has been committed not whether a ground for convicting the accused has been made out.  The Honourable Supreme court held that there was no evidence of contact between the accused and arrested person and whatever found in chats are not sufficient to invoke the Section 5(1) (a) of The Immoral Traffic (Prevention) Act, 1956. There was no statements of the victims under Section 161 of Code of Criminal Procedure 1973.  The Honourable Supreme Court also observed that Inherent and constitutional powers of the court can be invoked in this case.

The Decision Held by the Court

1. The Writ Petitions No. 1688 of 2020 and 1708 of 2020 stand allowed.

2. The orders passed by the Additional Session Judge in order dated 15.12.2020 is set aside and the present petitioner stands discharged under Section 5(1) (a) of The Immoral Traffic (Prevention) Act, 1956.

Click here to view/download the judgement >