Point of law : PITA Act – Discharge of accused persons - Procurement of victim girls –Raid in house – No evidence and no statement of victim girls and statement of dummy customers

JUDGMENT :

VIBHA KANKANWADI, J.

1. Rule. Rule made returnable forthwith. Heard finally, with consent of both the parties.

2. Present writ petitions have been preferred by original accused Nos.7, 8 and 9 in Sessions Case No. 209 of 2020 challenging the order of rejection of their applications for discharge under Section 227 of the Code of Criminal Procedure below Exhibit-11 and 16 respectively by learned Additional Sessions Judge, Aurangabad on 15.12.2020. The petitioners have invoked the constitutional powers of this Court under Article 227 of the Constitution of India and inherent powers under Section 482 of the Code of Criminal Procedure to challenge those impugned orders.

3. Heard learned Advocate Mr. A.K. Bhosale for petitioners in both the writ petitions and learned APP Ms. V.S. Choudhary for the respondent-State.

4. It has been vehemently submitted on behalf of the petitioners that the investigation is over and charge-sheet has been filed. Accused Nos.7 to 9 came to be arrested on 08.12.2019. The FIR was lodged by Madhukar Sawant, Police Inspector of Crime Branch, Aurangabad for the offences punishable under Section 370(a)(2) of Indian Penal Code, Section 3, 4, 5 and 6 of the The Immoral Traffic (Prevention) Act, 1956 (herinafter referred to as the ‘PITA Act’), Section 67 and 67(a) of Information Technology Act, 65(K) of the Bombay Prohibition Act against about 10 accused persons. Accused No. 10 is still absconding. Accused Nos.1 to 5 were also arrested on the same day i.e. 08.12.2019, whereas accused No. 6 came to be arrested on 11.12.2019. Accused No. 2 had filed application seeking regular bail before this Court bearing Bail Application No. 366 of 2020, which came to be rejected on 07.08.2020. Though she was not party to these criminal writ petitions, when said applicant i.e. original accused No. 2 had approached the Hon’ble Supreme Court by filing Miscellaneous Application No. 656 of 2021 in Special Leave Petition (Crl) No. 4420 of 2020, initially the Sessions Case was expedited, however, by order dated 29.04.2021, time to dispose of Sessions Case was extended by one year. In that order itself, it was observed that this Court should decide these two criminal writ petitions expeditiously.

5. Learned Advocate for the petitioners vehemently submitted that if the allegations are considered, then only offence under PITA Act, that too by showing accused Nos.7 to 9 i.e. present petitioners as customers, have been alleged. Therefore, we need not go into the other allegations. While deciding the applications, the learned Additional Sessions Judge has come to the conclusion that offence under Section 5(1)(a) of PITA Act can be said to have been committed by the present petitioners and thereupon on 24.12.2020, vide Exhibit-31, charge has been framed against the present petitioners for the offence punishable under Section 5(1) of the PITA Act. It has been prima facie held that the act attributed to the present petitioners would show that they have “procured” the victim girls. It has been observed in the order passed below Exhibit-11 and 16, after taking note of the dictionary meaning of the word “procure”, that the customers i.e. the present petitioners did take some pains by using electronic media for booking and obtaining the victim girls and buying them for satisfaction of lust by contracting the remaining accused. This appears to be the imagination of the learned Trial Judge as there is no further evidence attached in the form of CDR. So also, when there is no evidence collected regarding payment of money by the customers to the brothel owner, it is stated that it would be the part of the evidence at the time of trial. When that evidence does not form the part of charge-sheet, it was not appropriate on the part of the learned Trial Judge to arrive at the said conclusion. The present petitioners ought to have been discharged taking into consideration the evidence that has been gathered.

6. Learned Advocate for the petitioners relied