Thursday, 2 June 2016

Whether provisions of IPC are ancillary to Immoral Traffic (Prevention) Act?

The contention that the provisions of IPC are ancillary to the
provisions of ITP Act ignores the settled principle that same set of facts may
constitute offences both under the IPC and a special enactment. The
Supreme Court in the decision reported as (1988) 4 SCC 655 State of Bihar 
Vs. Murad Ali Khan & others held –
“31. The same set of facts, in conceivable cases, can constitute
offences under two different laws. An act or an omission can
amount to and constitute an offence under the IPC and at the
same time constitute an offence under any other law. 
 IN THE HIGH COURT OF DELHI AT NEW DELHI

 Judgment Delivered on: June 01, 2016
CRL.A. 723/2014
REKHA ..... Appellant

versus
STATE ..... Respondent

CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA



1. Rekha and Sheetal challenge the impugned judgment dated April 25,
2014 convicting them for offences punishable under Sections 373/34,
366A/34, 342/34 IPC and Sections 3/4/5/6 of the Immoral Traffic
(Prevention) Act, 1956 (in short „ITP Act‟) and the order on sentence dated
May 01, 2014 by which they have been directed to undergo rigorous
imprisonment for a period of ten years and to pay a fine of `10,000/- each
for offence punishable under Section 373/34 IPC; rigorous imprisonment for
a period of ten years and a fine of `10,000/- each for offence punishable
under Section 366A/34 IPC; rigorous imprisonment for a period of one year
and a fine of `5,000/- each for offence punishable under Sections 34/34 IPC;
rigorous imprisonment for a period of two years and a fine of `2,000/- each
for offence punishable under Section 3 ITP Act; rigours imprisonment for a
period of two years and a fine of `1,000/- for offence punishable under
Section 4 ITP Act, rigorous imprisonment for a period of seven years and a
fine of `2,000/- for offence punishable under Section 5(d) proviso (ii) and
rigorous imprisonment for a period of seven years and a fine of `5,000/-
each for offence punishable under Section 6 ITP Act.
2. FIR No.20/2012 was registered under Section 23 Juvenile Justice
(Care and Protection of Children) Act, 2000 (in short „JJ Act‟), Sections
366A/372/373/376/342/109/34 IPC and Sections 3/4/5 of the ITP Act at PS
Kamla Market on the complaint of the prosecutrix „S‟ after she was rescued
pursuant to the raid conducted at Kotha No.70, Third Floor, left side, G.B.
Road by the local police in association with the NGO Shakti Vahini.
3. „S‟ stated that she was a resident of West Bengal, studied upto 9th
standard in the year 2011. Her father was a contractor of making bus stands.
In the village she became friendly with a boy. That boy allured her to go to
Delhi and that on reaching Delhi he would marry her. Impressed by his
words, she left for Delhi along with him around 5-6 months ago. The boy
brought her to Sialdah Railway Station where she was introduced to a lady
whose name she does not know and the boy stated that she should
accompany that lady to Delhi and he would come to Delhi after 3-4 days.
„S‟ came to Delhi along with that lady who took her to Majnu Ka Tila. 
That lady kept her for seven days at Majnu Ka Tila and then brought her to
Kotha No.70, G.B.Road where she sold her to a lady named Sheetal for a
sum of `30,000/-. The amount of `30,000/- was given by Sheetal to that
lady in her presence. Thereafter Sheetal told her that the prosecutrix had
reached Kotha and that she will now have to do prostitution. When „S‟
refused to do prostitution, Sheetal along with another lady, who was present
at the Kotha, namely Rekha threatened her stating that she could not go
anywhere now, she will have to live at the Kotha and sell her body for
earning money. Thereafter Sheetal and Rekha forcibly put her into
prostitution and contrary to her wishes she was forced to have sexual
intercourse with the customers. Whatever money was given to her by the
customers, was taken away by Sheetal and Rekha, who did not permit her to
leave the Kotha. Thus action be taken against them.
4. After registration of FIR, MLC of the prosecutrix „S‟ was conducted
which showed that she was subjected to sexual intercourse. Her statement
was recorded by learned Metropolitan Magistrate under Section 164 Cr.P.C
vide Ex.PW-9/B. During the course of trial her date of birth certificate was
proved as Ex.P1 by PW-12 Dr.Anirban Roy, Health Officer and Registrar
(Births and Death), Panihati Municipality, Calcutta which noted her date of
birth as 22 April, 1995. Thus six months prior to the date of registration of
FIR, that is, in September, 2011, when she was sold to Sheetal and forced
into prostitution by Sheetal and Rekha, she was aged 16 years and 5 months.
5. Learned counsel for the appellants contends that uncorroborated
testimony of the prosecutrix was insufficient to convict the appellants for the
offences as noted above. The appellants have been acquitted for the offence
punishable under Sections 376/109 IPC and Sections 23/26 JJ Act, thus they
could not have been convicted for the offences punishable under Section 373
or 366 IPC. The prosecutrix „S‟ stated that she was forced to have sexual
intercourse with the customers however, no customer has been convicted
along with the appellants. There is no evidence on record to show that the
premises was being used for prostitution. Once there was no material to
show that the premises was being used for prostitution, the appellants cannot
be convicted for the offences punishable under the ITP Act. Further the
offences punishable under the Indian Penal Code being ancillary to the
provisions of ITP Act, the appellants are entitled to be acquitted for the
offences punishable under Indian Penal Code as well. Though Shri Subir
Roy, PW-8, the Director of NGO Shakti Vahini stated that he received an
information on 27th February, 2012 however he gave the information to the
police belatedly on 28th February, 2012. If the premises was being used for
prostitution, there would have been other inmates however, no other inmate
has been joined in the search. The conduct of the prosecutrix is unnatural
and she was a consenting party to the acts. No investigation has been
conducted against Ajay who allured her and sent her to Delhi with another
lady who in turn sold her. Father of the prosecutrix was deliberately not
made a witness though he was informed by Shakti Vahini NGO. Both Shri
Subir Roy and Saie Shetye have been cited in the other case of the Kamla
Market and thus they were stock witnesses. No public person was made to
join the raiding party and thus the safeguards provided under the Indian
Penal Code and the ITP Act have not been maintained. When the appellants
were arrested, they were not informed that they were entitled to legal aid and
that they could not be arrested after the sun set. Though the area is thickly
populated with shopkeepers on the ground floor however, no shopkeeper
was joined in the raid. The MLC of the prosecutrix shows no injuries and
thus sexual intercourse, if any, was consensual. The prosecutrix being
above 16 years of age she could have validly given her consent. The
testimony of the prosecutrix does not inspire confidence. The defence
evidence has been wrongly discarded. Reliance is placed on the decisions
reported as JT 2010 (1) Aftab Ahmad Ansari vs. State of Uttranchal, 1962
AIR Madras 31 Re: Ratanmala and another, 1981 Cri.L.J 618 Dudh Nath
Pandey vs. State of U.P., 1965 (1) Cri.L.J 605 Avtar vs. State of Punjab,
2002 (2) JCR 512 (Jhr) A.K.Sen Gupta @ Alok Kumar Sen Gupta vs. The
State of Jharkhand, Manu/JH/1169/2008 Shyam Lal Sahu, Surender Gope
vs. State of Jharkhand, 2016 (1) JCC 584 Bhagti Ram Pandey vs. State of
NCT of Delhi and JT 2015 (3) SC 35 Md.Ali @ Guddu vs. State of U.P.
6. Learned APP for the State on the other hand contends that when raids
are conducted at the instance of NGOs and they participate in number of
raids, the witnesses from the NGO cannot be termed as stock witnesses.
Besides a lady constable, the raiding team comprised of one more lady
hence the provisions of search as mandated under Section 100 Cr.P.C. and
Section 15 of the ITP Act were duly complied with. Rekha was arrested at
the spot from Kotha No.70. From the testimony of the prosecutrix it has
been proved beyond reasonable doubt that both Rekha and Sheetal were
living on the earnings of the prostitution. Even though Neelam, PW-13 did
not support the prosecution case and stated that she was voluntarily doing
the acts, the evidence of the prosecutrix cannot be discarded. The defence
evidence cannot be relied upon. Since the prosecutrix was a minor at the
time when she was forced into prostitution presumption under Section 6
(2A) of ITP Act is required to be raised which has not been rebutted by the 
Appellants. The offences punishable under Sections 366A and 373 IPC are
independent of offence punishable under Section 376 IPC. The ITP Act was
enacted in the year 1956 whereas the Indian Penal Code in the year 1860.
Hence the provisions of Indian Penal Code cannot be said to be ancillary to
the provisions of ITP Act. The defence raised by the appellants is an
afterthought as no such suggestion has been given to the prosecution
witnesses and no such plea has been taken in the statement under Section
313 Cr.P.C. Reliance is placed on the decision reported as 1970 Cri.L.J.
1279 Bai Radha vs. State of Gujarat which holds that non-compliance of
Sub-section (1) and (2) of Section 15 while making a search is mere
irregularity and the same does not vitiate the trial.
7. The prosecutrix „S‟ deposed in sync with the statement on the basis of
which FIR was registered and her statement under Section 164 Cr.P.C. was
recorded. The crux of the cross-examination is how she was brought back
from her home so that she could get her statement recorded in the Court.
The rest of the cross-examination is with regard to Ajay threatening her and
bringing her to Sialdah and her onward journey to Majnu Ka Tila and Kotha
No.70. She has stated in her deposition that one another girl had informed
her family however, she could not take the courage to inform her family.
However, after two days „S‟ informed her family through the mobile phone
of one customer whereafter her family members came to PS Kamla Market
and she was rescued on February 28, 2012. She stated that a police officer
called out her name and she came out, though no person from outside
gathered at Kotha No.70 when the police came to rescue. Despite elaborate
cross-examination nothing material could be elicited with regard to the noninvolvement
of Rekha and Sheetal or to show that the ingredients for 
offences convicted of were not made out. She clarified that though the
police used to visit the Kotha twice or thrice every week however she could
not make complaint due to fear as other girls had told her that in case she
complained to the police she would never be able to go back to her house.
She denied that she had voluntarily come to Delhi or that she was living at
Kotha No.70 of her own free will. Thus there is an admission that the
prosecutrix was living at Kotha No.70 as noted above.
8. The age of the prosecutrix has been proved to be below 18 years as on
the date when the offence took place and her MLC proves being subjected to
sexual intercourse. In view of these facts presumption under Section 6 (2A)
ITP Act is required to be drawn and the appellants have failed to rebut the
said presumption. Even if the email/information was received on 27th
February, 2012 and the police was informed on 28th February, 2012 the
same would not be fatal as the raids are required to be conducted in a
planned manner and not haphazardly making the exercise futile one. Shri
Subir Roy, PW-8 is the Director of NGO Shakti Vahini who runs
Programme and Project. Thus working in the field of rescue and
rehabilitation of the sex workers at G.B. Road, if Shri Subir Roy was
associated with number of the search and seizures, it cannot be said that Shri
Subir Roy was a stock witness. From the statement of the prosecutrix it has
been proved beyond reasonable doubt that the appellants committed the
offences as noted above.
9. The contention that the provisions of IPC are ancillary to the
provisions of ITP Act ignores the settled principle that same set of facts may
constitute offences both under the IPC and a special enactment. The
Supreme Court in the decision reported as (1988) 4 SCC 655 State of Bihar 
Vs. Murad Ali Khan & others held –
“31. The same set of facts, in conceivable cases, can constitute
offences under two different laws. An act or an omission can
amount to and constitute an offence under the IPC and at the
same time constitute an offence under any other law. The
observations of this Court made in the context of Section 2(3) of
Contempt of Courts Act might usefully be recalled. In Bathina
Ramakrishna Reddy v. State of Madras [AIR 1952 SC 149 : 1952
SCR 425 : 1952 Cri LJ 832] this Court examined the contention
that the publication of an article attributing corruption to a
judicial officer was not cognizable in contempt jurisdiction by
virtue of Section 2(3) of the Contempts of Courts Act, 1953,
which provided that:
“No High Court shall take cognizance of a
contempt alleged to have been committed in respect of
a court subordinate to it where such contempt is an
offence punishable under the Indian Penal Code.”
32. The contention before this Court was that the allegations
made in the article constituted an offence under Section 499 IPC
and, that therefore, cognizance of such offence under the
Contempts of Courts Act was barred. Repelling the contention,
Mukherjea, J. said: (SCR p. 429)
“In our opinion, the sub-section referred to above
excludes the jurisdiction of High Court only in cases
where the acts alleged to constitute contempt of a
subordinate court are punishable as contempt under
specific provisions of the Indian Penal Code but not
where these acts merely amount to offences of other
description for which punishment has been provided
for in the Indian Penal Code. This would be clear from
the language of the sub-section which uses the words
„where such contempt is an offence‟ and does not say
„where the act alleged to constitute such contempt is an
offence‟.”
10. The explanations of both Rekha and Sheetal in their statements under
sec 313Cr.PC are that they are innocent and have been falsely implicated.
Sheetal has taken a specific plea that she had gone to her native village in
Maharashtra about three months ago and returned on 5th March, 2012.
Before going to Maharashtra she was living at Kotha No.70, G.B. Road.
Rekha and Sheetal examined as many as eight defence witnesses.
11. Sushil Kumar, DW-1 has been produced to prove that the prosecutrix
visited his office B-3, Hans Bhawan, Bahadur Shah Zafar Marg to get
prepared her PAN card, copy of which is exhibited as Ex.PW-9/DA. He
could neither produce the receipt from the company from where the so
called PAN Card was prepared nor did he take any acknowledgment.
12. Raju, DW-2 stated that he was working as a cook at House No.70,
Shradhanand Marg and he was preparing the food for Sheetal, Rekha and
other girls. He identified Rekha and Sheetal and that he had given his SIM
card to Sheetal in the year 2011 on her request as she had no ID proof.
Sheetal was using her mobile phone. Saleem, DW-3, TSR Driver has been
produced to show that the prosecutrix was going for shopping to various
markets and used to hire his scooter. Mohd.Shahid DW-5 who was running
the shop in front of House No.70, G.B.Road, Delhi stated that the
prosecutrix used to go to make purchases and he used to send paranthas
from his shop to House No.70 through the rickshaw wala or servants.
Pradeep Kumar, DW-6 who was working as a cook stated that no food was
brought from outside. Thus he belied the version of DW-5 who stated that
eatables and paranthas from his shop were sent to House No.70. The
version of Saleem, TSR Driver, even if accepted, would show that the
prosecutrix was permitted to go with restricted number of people and thus a 
watchful eye was kept on her every time and she was in the clutches of the
appellants. Thus the defence of the appellants does not merit any
consideration.
13. I find no merit in the appeals. The judgment of conviction and the
order on sentence are upheld.
14. Appeals are dismissed. Appellants will undergo the remaining
sentence.
15. Copy of this order be sent to Superintendent Central Jail Tihar for
updation of the Jail record.
16. TCR be returned.
 (MUKTA GUPTA)
 JUDGE
JUNE 01, 2016
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