Thursday, 10 September 2015

Whether ” illicit intercourse ” within the meaning of S 373 of IPC should be for the purpose of “prostitution”?

Going by Explanation II to Section 372 of the Indian Penal

Code, sexual intercourse between persons not united by marriage or by

any union or tie constituting a quasi marital relation would amount to

illicit intercourse. That definition is incorporated into Section 373 of the

Indian Penal Code by the specific mention to that effect in Explanation II

therein.     Section 373 of the Indian Penal Code applies where any

person buys, hires or otherwise obtains possession of any person under

the age of eighteen years. Such act should be with the intent that the

person concerned (victim) shall at any age be employed or used for the

purposes mentioned in the Section. The purposes mentioned in the

Section are: (a) prostitution; (b) illicit intercourse; or (c) any unlawful and

immoral purpose. To attract Section 373 IPC, it is not always necessary

that such intent must be established.           It is sufficient if the offender

knows it to be likely that such person (victim) will at any age be

employed or used for any purpose mentioned in the Section.                  The

expressions "prostitution" and "illicit intercourse" are not used

conjunctively in Section 373, but they are used disjunctively. The "illicit

intercourse" within the meaning of Section 373 IPC need not be in the

process of prostitution. Even in the absence of prostitution, an illicit

intercourse would amount to an offence under Section 373 of the Indian

Penal Code, provided the other essential conditions are satisfied. The



contention that unless the victim is employed for prostitution, the

procurer is not guilty even if he had illicit intercourse with the victim, is

absolutely unsustainable, going by the ingredients of Section 373 of the

Indian Penal Code. The contention put forward by the learned counsel

that Explanation I to Section 373 would lend support to the contention

that illicit intercourse must be for the purpose of prostitution, is also

without substance. Explanation I provides for a presumption that any

prostitute or any person keeping or managing a brothel shall be

presumed to have obtained possession of the female under the age of

eighteen years with intent that she shall be used for the purpose of

prostitution. The presumption under Explanation I does not lead to the

conclusion that "illicit intercourse" within the meaning of Section 373

should be in the process of or for the purpose of or as part of

prostitution.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl..No. 5786 of 2011()


SUNNY, S/O. JOSEPH,
                      ...  Petitioner

                        Vs



STATE, REPRESENTED BY THE
                     
The Hon'ble MR. Justice K.T.SANKARAN

 Dated :08/08/2011






      These Bail Applications are filed under Section 439 of the Code

of Criminal Procedure by accused Nos.45,103, 47, 114 and 104 in

CBCID Crime No.111/CR/HHWII/EKM/11 (North Paravoor Police Station

Crime No.346 of 2011). The offences alleged against the accused are

under Sections 366-A, 354, 372, 373, 376 (2) (g), 506 (i), 342 and 202

read with Section 34 of the Indian Penal Code and Section 23 of the

Juvenile Justice (Care and Protection of Children) Act.



      2. The details regarding the name of the accused, his rank as an

accused, date of his arrest and the Bail Application number are shown in

the table below:

Sl.

No.    Name of the accused       Rank     Date of arrest      Bail Application
1     Sunny                         45        30/6/2011     B.A. 5786 of 2011
2     Rajasekharan Nair @                                   B.A. 5947 of 2011
      Rajan                        103          08/07/11
3     R.Mohan Kumar                 47          01/07/11    B.A. 5972 of 2011
4     Maideen                      114          14/07/11    B.A. 5999 of 2011


       Magudeswaran           104      08/07/2011      B.A. 6028 of 2011

   3. The gist of the prosecution case is the following: The victim, a

girl aged below 16 years, was taken to several places within the State

and in the neighbouring States under force and threat and she was

compelled to have sexual intercourse with several persons against her

will and without her consent for the period from 3-5-2010.       The First

Information Statement was given by the victim on 7-3-2011. The father

of the victim is a real estate broker and a person who supplies junior

artists to film makers. On 3-5-2010, the victim was taken by her father

to a hotel at Panampilly Nagar, Ernakulam, stating that they had to meet

`film people'. After leaving the victim in the room in the hotel, father of

the victim left the place. The victim was raped by the man who was in

the room. Thereafter, on that date and on the following days, she was

taken to several places in and around Ernakulam city, Mysore, Ooty,

Thiruvananthapuram,      Kannur,    Chalakkudy,    Athirappilly,  Munnar,

Bangalore, Thrissur, Mapranam, Coimbatore etc.         On 1-1-2011, the

father of the victim took her to Coimbatore and entrusted her to a man

and woman. They took the victim to a house where she was locked.

She was subjected to forceful sex by twelve persons who visited the


house.      The victim escaped from that house and after reaching her

native place, she disclosed the matters to her paternal uncle and other

relatives. They advised the victim to inform the matter to the police.



        4. The victim stated in the First Information Statement that her

father used to entrust her with some brokers. The mother of the victim,

initially opposed the misdeeds of her husband, but she was silenced by

meting out cruelty to her by her husband. The father of the victim also

threatened and terrorized the victim and her brother. On one occasion,

the victim    was taken by his father to Varapuzha bridge and he

threatened that the victim would be thrown to the river. The father used

to hang the brother of the victim upside down on the fan to pressurize

the victim to go for sex work.      The victim also stated in the First

Information Statement that her father used to give her pills to prevent

pregnancy. The victim had even to undergo treatment in two hospitals

as a result of subjecting her to excessive sexual intercourse. The victim

stated that her father used to receive money for presenting her to

several persons.



        5. Heard Sri.K.Abdul Jawad, Sri.M.T.Suresh Kumar, Sri.K.Sunil

Kumar, Sri.Mansoor.B.H.        and Anil K.Muhamed, learned counsel

appearing for the petitioners, and Sri.V.Tekchand and Sri.V.Manu, the

learned Public Prosecutors.



       6.     The allegation against Accused No.45 Sunny (Petitioner in

B.A. No. 5786 of 2011) is that he, along with Anoop (accused No.150),

procured the victim girl with the help of Omana (Accused No.14). The

girl was taken in a car to Vengoor, where Sunny owns a property. They

subjected the girl to sexual abuse. They gave Rupees Five hundred as

tip to the girl and Rupees Five thousand to Omana, the pimp. It is

alleged that Sunny contacted one Lissy, who arranged a shed near

Vengoor Dam, where the offence was committed.



       7. Rajasekharan Nair @ Rajan (accused No.103) is aged 70

years. He was working in Navy. He purchased a property very near to

the house of the victim. The property was purchased with the help of

accused No.1, father of the victim. The family of the victim and accused

No.103 became close to each other. The father of the victim requested

for the help of accused No.103 to advise the victim girl against the

excessive use of mobile phone by her. It is alleged that under the

pretext of advising the victim, accused No.103 could manage to get a

convenient place in the house of the victim. He made sexual advances

to the victim and eventually he had sexual intercourse with the girl on

different occasions.      The victim girl used to call accused No.103

"appooppan" (grandfather).



       8. The allegation against accused No.47 R.Mohan Kumar is that

he had sexual intercourse with the victim girl at Coimbatore. It is alleged

that accused No.32 Shaji procured the girl and handed over to accused

No.47. The victim was detained by accused No.32 Shaji and his wife

Jessy (accused No.15). It is alleged that Shaji and Jessy are involved in

a sex racket. They were involved in Kanjikode sex scandal in the year

2002. They shifted to Coimbatore and purchased a house, where the

immoral activities are facilitated.   It is alleged that accused No.47

R.Mohan Kumar, who conducts real estate business in Coimbatore, took

the girl to a storied building where he conducts the real estate office. He

had sexual intercourse with the girl in the bedroom in the upstair of that

building.



       9. Accused No.114 Maideen is a dealer in scrap. It is alleged

that he has acquaintance with Omana (accused No.14). Omana and

the father of the victim arranged the victim to Maideen who had sexual

intercourse with the girl in his bedroom. It is alleged that Maideen paid

Rupees Five thousand to the father of the victim and Rupees Five

hundred as tip to the girl.



       10.   Magudeswaran, accused No.104, had sexual relationship

with the girl on two occasions, one in the house of Julie (accused

No.105) and on another occasion in a lodge near Chottanikkara. Julie

procured the girl for Magudeswaran, who is a professional money

lender.



       11. Sri.M.T.Suresh Kumar, the learned counsel appearing for

accused No.47, submitted the following: Accused No.47 was falsely

implicated in the case at the instance of accused No.32 Shaji, with

whom Mohan Kumar is on inimical terms.                  Even going by the

prosecution case, the victim accepted remuneration and that implies her

consent. The allegation is that accused No.47 had sexual intercourse

with the girl in February, 2011. By that time, she had attained sixteen

years of age. Therefore, Section 376 of the Indian Penal Code is not

attracted. The learned counsel also submitted that Section 373 of the

Indian Penal Code is also not attracted, since, according to the counsel,

the expression "illicit intercourse" in Explanation II to Section 373 should

be read along with the expression "prostitution" occurring in Section 373.


The counsel submits that unless the girl is employed for prostitution, the

procurer is not guilty under Section 373, even if he had sexual

intercourse with the girl.



       12. Advocate Sri.Abdul Jawad, learned counsel appearing for

accused No.114, submitted that there is nothing to indicate that the

accused knew or had reason to believe that the victim was below the

age of sixteen years. There is no material to arrive at the conclusion

that the accused had sexual intercourse with the girl knowing her to be

under the age of sixteen years. The counsel submitted that accused

No.114 suffered heart attack on three occasions.



       13. Sri.Mansoor.B.H., the learned counsel appearing for accused

No.103, submitted that there is no mention in the First Information

Statement or in the statement of the victim under Section 164 of the

Code of Criminal Procedure about the complicity of accused No.103.

The said accused is a mahazar witness. The counsel submitted that

accused No.1, the father of the victim, after his release on bail,

demanded Rupees Two lakhs from the accused and he is implicated in

the case only on the ground that he refused to accede to the illegal

demand of accused No.1.


       14. The counsel appearing for the petitioners submitted that the

remand reports produced in Court do not clearly state on what materials

the petitioners are implicated and therefore, the petitioners are entitled

to be released on bail. The counsel submitted that, at this stage, the

accused can rely only on the remand reports and their fundamental

freedom cannot be curtailed on scanty materials and insufficient data.



       15. The contention that it must be shown that the accused was

aware of the victim being under the age of sixteen years so as to

constitute the offence under Section 376 of the Indian Penal Code, was

rejected by this Court while dismissing some of the Bail Applications in

the same Crime, wherein it was held thus:



              "The knowledge of the accused about the age of the

       victim is irrelevant. The question is whether the victim was

       under 16 years of age at the relevant time. Section 376 of

       the Indian Penal Code provides that a man is said to

       commit rape who has sexual intercourse with a woman,

       whether with or without her consent, when she is under

       sixteen years of age. A girl under 16 years of age cannot

       give a valid consent for sexual relationship. Even with such

       consent, the act would amount to rape under Section 376

       of the Indian Penal Code. Even when the girl, who is really


       under sixteen years of age, makes a false representation

       that she is above sixteen years, sexual intercourse with her

       by a man would amount to rape. "



       16. The contention raised by the counsel that the remand reports

are lacking in material particulars is also without merit. I have gone

through the remand reports.       Necessary details are available in the

remand reports. A remand report is for the purpose of enabling the

Magistrate to satisfy himself of the necessity to remand the accused. A

particular remand report has significance only for the period during

which the accused is remanded, unless the same is relied on for the

remand of the accused for subsequent period also. A remand report

need not contain all the details which are available in the First

Information Statement and the other materials collected during

investigation. The remand report need only contain sufficient materials

to arrive at the conclusion that detention of the accused is necessary or

the continued detention of the accused is necessary. In other words, a

remand report is not a substitute for the material papers to be supplied

on appearance of the accused. An accused is not entitled to contend

that he is entitled to be released on bail on the ground that all the

materials collected during the investigation are not reproduced in the

remand report.

       17. In Kamarudheen v. S.H.O., Muvattupuzha Police Station

(I.L.R. 2010 (3) Kerala 870), the following contention was raised by the

accused:



              "Except an allegation in the remand report dated

       22.7.2010 that A-10 is involved in the criminal conspiracy,

       there is total lack of any material to support or substantiate

       the said allegation. On the contrary the said remand report

       refers to the confession by Yunus (A-4) regarding the

       criminal conspiracy hatched by the accused persons who

       do not include A-10. In the remand extension report dated

       4.8.2010 also, there is no incriminating material relied on

       by the investigating officer so as to justify the continued

       detention of A-10. No weapon has been recovered from A-

       10. When the remand report dated 22.7.2010 and remand

       extension report dated 4.8.2010 do not contain any

       incriminating material or circumstance against A-10, it is

       not open to the Public Prosecutor to elicit grounds or

       circumstances which are not referred to in the remand

       reports. A remand report is a vital document which should

       contain each and every ground on which a person accused

       of an offence is sought to be remanded to custody.



In Kamarudheen's case, the aforesaid contention was answered thus:

              "16.     It is true that the remand report dated

     22.7.2010 and the remand extension report dated 4.8.2010

     pertaining to A-10 do not make mention of all the

     incriminating circumstances now relied on against him.

     The Cr.P.C. does not even use the expression "remand"

     during the crime stage (investigation stage) of a case.

     Section 167 Cr.P.C. only uses the expression "detention"

     at that stage. It is only at the post-cognizance stage that

     the Cr.P.C. uses the expression "remand" (vide Section

     309(2) Cr.P.C.).     However, by way of long usage or

     practice, the process of the Magistrate authorizing the

     detention of an accused person during the stage of

     investigation also is understood as "remand".


            17. There is no provision in the Cr.P.C. requiring the

     Police Officer to submit a "remand report".       But under

     Section 167 Cr.P.C. it is imperative that the Police Officer

     should send along with the accused a copy of the entries in

     the Police diary which he is bound to maintain under

     section 172 Cr.P.C. Usually copies of the entries in the

     Police diary are not separately sent to the Magistrate.    A

     gist of the above entries in the Police diary alone is

     incorporated by the Police Officer in the remand report or

     in the remand extension report. The purpose of filing such

     reports and the purpose of incorporation of the diary

     entries in such reports is to enable the Magistrate to decide

     whether he should authorize the detention or further

     detention of the accused to Police or judicial custody, as

     the case may be, or to release the accused. Bearing in

      mind the purpose and significance of the remand report

      and the Constitutional rights of the arrestee, the accused

      has a right to get a certified copy of such remand report."



      18. In Fr.Jose Poothrikkayil and others v. Union of India and

another (2008 (4) KHC 902), referring to Section 167(1) of the Code of

Criminal Procedure, it was held thus:



             "24. The obligation under S.167(1) CrPC to furnish

      copies of entries is certainly, according to me, not to give

      the accused an opportunity to modulate and formulate his

      defence. The purpose is very clear and certain. A person

      is to be deprived of his liberty only in accordance with the

      procedure established by law as per Art.21. Even before

      he is found guilty, notwithstanding the presumption of

      innocence, the Court is given the power to deprive a

      person of his liberty.      Strong reasons must be shown.

      Such powers cannot be resorted to as a matter of course.

      It is incumbent on the Investigating Officer to satisfy

      himself first as stated in Jyothish (supra) that an arrest has

      to be made. It is incumbent on him to satisfy the judicial

      authority - the judicial Magistrate- that he has valid and just

      reason for arresting a person and depriving him of his

      personal liberty. He has the duty to apprise the Court of

      the circumstances which must prompt the Court to resort to

      the unpleasant assignment of denying a person liberty

      even when the allegation against him is not proved to the

     hilt. I reckon that the clear and unambiguous mandate of

     S.167(1) CrPC is that a person shall not deprived of his

     personal liberty unless there be satisfactory reasons. A

     compromise between the high ideals of personal liberty

     and the compelling needs of a proper investigation to

     collect materials in the interests of the State and the polity

     at large is reflected in S.167(1) CrPC.            Therefore,

     according to me, it is idle to contend that the accused have

     been deprived of an opportunity to modulate their defence.


            25. I must also note that every error committed by

     an Investigating Officer or Magistrate cannot persuade this

     Court to invalidate the action taken. Rule of law is not a

     mere fetish.    Rule of law must cater to justice in the

     ultimate sense. It would be puerile and myopic for a Court

     merely on seeing some inadequacy on the part of the

     Investigating Officer or the Magistrate under S.167(1) CrPC

     to invalidate the entire proceedings and action taken. The

     duty is on every functionary under the Constitution to

     translate into reality the preambular commitment to do

     justice. Justice is the primary concern. S.167(1) deals with

     procedural law.     All rules of procedure are nothing but

     handmaids of justice. Where the provisions of the Statute

     and Rules are violated the Court has to see whether

     notwithstanding the violation, such infraction affects the

     root of the matter and is sufficient to invalidate the action

     taken.


             26.   I am of the opinion that the decision of the

      Karnataka High Court in Sudha Shivarame Gowda v. State

      of Karnataka, 1992 STPL (LE-Crime) 9651 KAR is perhaps

      the most apposite one on this aspect and rhymes with my

      thoughts on the subject. I am in complete agreement that

      the requirement of forwarding the entries in the case diary

      cannot be reckoned as a rule of the thumb as to invalidate

      the action as soon as that requirement is not satisfied.

      Such a view would lead to the bizarre conclusion that the

      Investigating Officer willing to oblige the accused (or an

      innocuous omission on the part of the Magistrate to give

      reasons under S.167(3) would deliver to the accused an

      undeserved advantage. That cannot be the law at all."



      19. A Division Bench in IN RE RAMAN VELU (1972 KLT 922)

held thus:



              "Where, under     S.167 or S.344 of the Code, the

       Magistrate passes an order of remand of the accused to

       custody, he performs a judicial act. That being so, the

       report, if any, submitted by the police is to furnish

       necessary information, on the perusal and examination of

       which the Magistrate has to take a decision as to whether

       or not the accused is to be committed to custody, or

       continued to be kept in custody, as the case may be. The

       purpose of the "remand report" is a relevant consideration

       in construing whether it is a 'public document' or not. What


         forms the basis of a judicial decision, or what is used to

         any extent in aid of a judicial decision, cannot but be a

         public document in our view. We are, therefore, of the

         opinion that the remand report submitted by the Police,

         whether in relation to the remand under S.167, of

         extension or remand under S.344 of the Code, is a public

         document within the meaning of S.74 of the Evidence Act.

         What is expected to be furnished to the court at the time of

         moving for the remand or for the extension of the remand,

         are the entries in the case diary which is a document

         forming acts or record of acts of the investigating officer."



        20. Now I shall deal with the question whether the contention that

the "illicit intercourse" within the meaning of Section 373 of the Indian

Penal Code should be for the purpose of "prostitution", is sustainable.

Section 373 of the Indian Penal Code reads as follows:

                "373. Buying minor for purposes of prostitution,

        etc.--     Whoever buys, hires or otherwise obtains

        possession of any person under the age of eighteen years

        with intent that such person shall at any age be employed

        or used for the purpose of prostitution or illicit intercourse

        with any person or for any unlawful and immoral purpose,

        of knowing it to be likely that such person will at any age be

        employed or used for any purpose, shall be punished with

        imprisonment of either description for a term which may

        extent to ten years, and shall also be liable to fine.


               Explanation I.--      Any prostitute or any person

       keeping or managing a brothel, who buys, hires or

       otherwise obtains possession of a female under the age of

       eighteen years shall, until the contrary is proved, be

       presumed to have obtained possession of such female

       with the intent that she shall be used for the purpose of

       prostitution.


               Explanation II.-- "Illicit intercourse" has the same

       meaning as in section 372."



       21. In Section 373 of the Indian Penal Code, the expressions

"prostitution" and "illicit intercourse" occur. Explanation II to Section 373

states that "illicit intercourse" has the same meaning as in Section 372.

Explanation II to section 372 defines "illicit intercourse" thus:



               "Explanation II.-- For the purposes of this section

       "illicit intercourse" means sexual intercourse between

       persons not united by marriage or by any union or tie

       which, though not amounting to a marriage, is recognised

       by the personal law or custom of the community to which

       they belong or, where they belong to different communities,

       of both such communities, as constituting between them a

       quasi marital relation."


         22. Going by Explanation II to Section 372 of the Indian Penal

Code, sexual intercourse between persons not united by marriage or by

any union or tie constituting a quasi marital relation would amount to

illicit intercourse. That definition is incorporated into Section 373 of the

Indian Penal Code by the specific mention to that effect in Explanation II

therein.     Section 373 of the Indian Penal Code applies where any

person buys, hires or otherwise obtains possession of any person under

the age of eighteen years. Such act should be with the intent that the

person concerned (victim) shall at any age be employed or used for the

purposes mentioned in the Section. The purposes mentioned in the

Section are: (a) prostitution; (b) illicit intercourse; or (c) any unlawful and

immoral purpose. To attract Section 373 IPC, it is not always necessary

that such intent must be established.           It is sufficient if the offender

knows it to be likely that such person (victim) will at any age be

employed or used for any purpose mentioned in the Section.                  The

expressions "prostitution" and "illicit intercourse" are not used

conjunctively in Section 373, but they are used disjunctively. The "illicit

intercourse" within the meaning of Section 373 IPC need not be in the

process of prostitution. Even in the absence of prostitution, an illicit

intercourse would amount to an offence under Section 373 of the Indian

Penal Code, provided the other essential conditions are satisfied. The


contention that unless the victim is employed for prostitution, the

procurer is not guilty even if he had illicit intercourse with the victim, is

absolutely unsustainable, going by the ingredients of Section 373 of the

Indian Penal Code. The contention put forward by the learned counsel

that Explanation I to Section 373 would lend support to the contention

that illicit intercourse must be for the purpose of prostitution, is also

without substance. Explanation I provides for a presumption that any

prostitute or any person keeping or managing a brothel shall be

presumed to have obtained possession of the female under the age of

eighteen years with intent that she shall be used for the purpose of

prostitution. The presumption under Explanation I does not lead to the

conclusion that "illicit intercourse" within the meaning of Section 373

should be in the process of or for the purpose of or as part of

prostitution.



        23.    There are enough materials to arrive at the prima facie

conclusion that the petitioners are involved in the offence. At this stage,

it cannot be expected to explain the role of each and every accused with

precision and with all particulars, particularly when there are about 150

accused in the case and when the case involves complex factual

situation.


        24. The petitioners are allegedly rich and influential people. If

they are released on bail at this stage, it is most likely that they would

terrorise, intimidate or influence the witnesses and tamper with the

evidence. It is also likely that the petitioners would make themselves

scarce and flee from justice.    I am not inclined to grant bail to the

petitioners at this stage.



       For the aforesaid reasons, the Bail Applications are

dismissed. Adequate medical attention shall be provided to

Maideen, accused No.114.




                                                    (K.T.SANKARAN)
                                                             Judge

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