S.K. Mishra, J.@mdashThe petitioners are charge-sheeted for the offence under Sections 324 , 326 , 366 /34 of the Indian penal Code, 1860, hereinafter referred to as the ''IPC'' for brevity, read with Sections 16 , 17 and 18 of the Bonded Labour System (Abolition) Act and Sections 23 and 26 of the Juvenile Justice (Care and Protection of Children) Act, 2000. After submission of charge-sheet, the learned SDJM, Bhubaneswar has taken cognizance of the offences mentioned above on 14.10.2014 in C.T. Case No. 459 of 2014, arising out of Chandrasekharpur P.S. Case No. 36/2014.
2. The learned counsel for the petitioners confined his argument only to the cognizance of offence under Sections 326 and 366 of the IPC. He concedes that as far as other offences are concerned, he is not advancing any argument for quashing of those offences. It is stated by the learned counsel for the petitioners that the ingredients of offence under Section 326 of the IPC are not fulfilled. Hence, cognizance of offence under Section 326 of the IPC should be quashed. It is also contended that the ingredients of offence under Section 366 of the IPC are singularly lacking in this case. So, order taking cognizance of the offence in that Section is also bad and is to be quashed.
3. This case was initiated on the FIR lodged by the Child Welfare Committee (CWC), Bhubaneswar, Dist: Khurda on 08.02.2014. It is alleged in the FIR that the victim girl, aged about 12 years was rescued by the police and was produced before the CWC on 06.02.2014.
It is alleged that in her statement, the victim girl stated that she is 4th child of Ananta Lohara and Kanakalata Lohara of Vill: Mugapala, P.S.: Kuakhia, District: Jajpur. Her father is a daily labourer and he was having difficulty to look after his eight children. The sister of her father, namely, Tara Lehar brought the victim to her home and she was studying Class-III in Kamarda Cromite Prathamik Vidyalay, At: Kumarda, P.O.: Kansa, P.S. Tamka, Dist: Jajpur. It is further alleged in the FIR that as Tara Lehar required money for her daughter''s marriage, she sold Saraswati-victim girl to the present petitioners, namely, D.K. Behuria and his wife Sagarika Sahoo, who are residing At: 13/9, BDA Colony, Chandasekharpur, Bhubaneswar for Rs. 15,000/-. It is alleged that this was done without the knowledge of her father.
The Child Welfare Committee alleged in the FIR that the victim girl has been working as a bonded labour with the aforesaid couple for the last two months. She was used to clean their home, wash their clothes, clean the toilet and did all other household chores as well as she looked after their baby. It is further alleged that she has been physically tortured by both the petitioners. As a result of such assault, she has got several marks and grievous injury over her body. In these two years, she was not allowed to meet her father. She has not even spoken to them. It is further alleged that when she cries with pain in her body, her employer threatened her that if she tells about the torture they will put her parents and herself in prison. Therefore, it is alleged that she was living with a traumatic state of mind with fear and pain.
On 06.02.2014, it was alleged that she was thrown out from the employer''s house. As a result, she got an opportunity to escape from the bonded slavery and the story of her suffering and cruelty by her employer came to light. The Committee took the view that it is a gross violation of child right. In the aforesaid facts, this Court is at loss to understand why the aunt (Pisi) of the victim girl, whose name is Tara Lehar has not been arrayed as an accused in this case as there is specific allegation that she sold her to the present petitioners. The investigation of the case has not directed in that line also and even if materials on record the learned SDJM, Bhubaneswar mechanically took cognizance of the offence and did not thought proper to issue process against the said Tara Lehar.
4. In course of hearing, the Court carefully examined the statement of the victim girl. It is apparent from her statement that when she was very young her mother died of lighting. Thereafter, Tara Bati Das, who happens to be her aunt, took her to Lambay. She was plucking flowers in the morning and it was going to the house of relations of the petitioners. On 07.05.2012, she came to the house of the present petitioners. The petitioners engaged her in all kinds of domestic work like washing of latrine, cleaning of house, looking after the baby girl of the petitioners. In the meantime, the said Tara Lehar took Rs. 15,000/- towards the service rendered by the victim to the petitioners. In her statement she has narrated the torture meted out to her and how she was assaulted by the petitioners and ultimately she was driven out on 07.01.2014 after inflicting injuries on her body. Then, she came out of their house and asked some people present in the street about way to Jajpur. When the public saw that she has sustained injuries, she was taken to child line. The child line approached C.W.C. and C.W.C. lodged an FIR as narrated above.
5. Now, the question remains to be seen whether offence under Section 326 of the IPC is made out or not. Section 326 of the IPC provides for punishment causing grievous heart by dangerous weapons or means. In this case, a careful examination of the injury report reveals that the victim girl sustained several injuries including cut injuries. None of those injuries is grievous. So, the essential ingredients to attract offence under Section 326 of the IPC are singularly lacking. Hence, the order taking cognizance of offence under Section 326 of the IPC is bad in law. Section 366 of the IPC provides for kidnapping, abduction or inducing woman to compel her marriage. It is appropriate to quote the exact provision. It reads as follows:--
"366. 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."
The essential ingredients of this Section is that kidnapping must have with intent that she can be compelled or knowing it to be likely that she will be compelled to marry a 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. So, the essential requirement of Section 366 of the IPC as distinguished from the fact of the case is that the girl or woman shall be put to sexually illicit intercourse or to take compel her marriage against her marriage. This is not the allegation of the prosecution in the present case. In this connection, the Court takes note of the reported case of
"xxx...we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under s.561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court''s inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained...xxx."
(Emphasis Supplied.)
6. As far as the present case is concerned, it comes into the 2nd category annunciated by the Hon''ble Supreme Court. It is apparent from the materials available on records, i.e. FIR, statements of the victim girl and other witnesses that the offence under Sections 326 and 366 of the IPC are not made out. So, the order passed by the learned SDJM, Bhubaneswar so far as it relates to taking cognizance offences along with other offences is bad. So, the order of taking cognizance so far as it relates to offence under Sections 326 and 366 of the IPC is bad and the same requires to be quashed. However, in course of examining the case, this Court also took the pains to examine Section 370 of the IPC as to whether it is attracted or not. It is necessary for properly appreciating the provision to quote the same in its entirety.
"370. Trafficking of person.--(1) whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by--
1. using threats, or
2. using force, or any other form of coercion, or
3. by abduction, or
4. by practising fraud, or deception, or
5. by abuse of power, or
6. by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received,
commits the offence of trafficking.
Explanation 1. The expression "exploitation" shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.
Explanation 2. The consent of the victim is immaterial in determination of the offence of trafficking.
2. Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine.
3. Where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
4. Where the offence involves the trafficking of a minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.
5. Where the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than fourteen years, but which may extend to imprisonment for life, and shall also be liable to fine.
6. If a person is convicted of the offence of trafficking of minor on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person''s natural life, and shall also be liable to fine.
7. When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person''s natural life, and shall also be liable to fine."
(Emphasis Added)
7. It is apparent from the above provision that any person for the purpose of exploitation, recruits, transports, harbours, transfers, or receives any person by using threat, force, or by abduction or by practising fraud or deception or by abuse of power or by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.
Explanation-1 provides that exploitation in this case includes any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. Explanation-2 provides that consent of the girl is immaterial in determination of the offence of trafficking.
As far as Sub-section (4) provides for where the offence involves the trafficking of a minor, it shall be publishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine. The offence is cognizable, non-bailable and triable by Court of Session.
8. After careful examination of Section 370 of the IPC, this Court finds it appropriate to find out whether the ingredients are prima facie available in this case or not. There is no dispute that there is severe allegation, which is supported by independent materials that the victim girl was exploited and harboured as a person similar to slave. Secondly, it is also apparent from the records that the petitioners by giving money (payments) obtained consent of the person having control over the victim. So, there is prima facie material before the Court indicating that the victim girl was, for the purpose of exploitation, recruited and harboured in the house of the petitioners by inducing, i.e. payment of money and the exploitation is akin to slavery or practices similar to slavery or servitude. This Court is of the opinion that the ingredients of Section 370 of the IPC are made out. Hence, this Court finds that the act of the police officer in not charging the petitioners under Section 370 of the IPC and instead of charging them under Sections 326 and 366 of the IPC is illegal.
9. On the basis of the aforesaid discussion, facts of law and citations, this Court is of the opinion that taking of cognizance of offences under Sections 326 and 366 of the IPC by the learned SDJM, Bhubaneswar is illegal and requires to be quashed. However, to prevent abuse of process of law, necessary directions be given to the learned Magistrate to examine the records in the light of the observations made in this judgment and if he finds that a prima facie case under Section 370 of the IPC is made out, he should pass appropriate orders thereon.
Accordingly, the CRLMC is disposed of quashing the cognizance of offence under Sections 326 and 366 of the IPC with a direction to learned SDJM to re-examine the records so far as it relates to a commission of offence under Sections 363 and 370 of the IPC and pass appropriate orders.
