IMPORTANT POINT
The power to alter the charge exists only with the court and cannot be based upon an application by any of the parties.

1. An application filed by the Public Prosecutor under section 216 of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’) to alter the charge already framed by adding another offence was dismissed by the impugned order. The said order is assailed in this petition under section 482 Cr.P.C.

2. According to the prosecution, the accused had in the year 2006, promised to provide CWs 1 and 2 with cleaning jobs at a Hospital in Dubai, and after collecting money, they were taken to Dubai. After reaching Dubai, they were confined in an apartment and were served with a beverage containing intoxicating substances and were repeatedly raped. The victims were forcibly taken to other apartments and, after wrongly confining them, were compelled to have sexual intercourse with several strangers. After the victims managed to escape from the clutches of the accused and, with the help of the Indian Embassy and others, came back to India and lodged the FIR as Crime No. 445/2006 of Thoppumpady Police Station. On completion of the investigation, the final report was filed, arraying the accused as having committed offences under sections 420, 376, and 342 read with section 120B of the Indian Penal Code, 1860 (for short ‘the IPC’). The case was committed to the Sessions Court and is now pending as S.C. No. 633/2014 on the files of the Additional Sessions Court, Ernakulam (For the trial of cases relating to Atrocities & Sexual Violence against Women and Children).

3. After the trial commenced and PWs 1 and 2 were examined, the prosecutor filed Crl. M.P. No. 1/2019 under section 216 of Cr.P.C. requesting to incorporate section 370 of the IPC also as an additional offence to be charged against the accused. According to the prosecution, the materials collected and the evidence adduced indicated the ingredients of the said section, and therefore, the charge ought to be framed under the said section as well. However, by the impugned order, the learned Sessions Judge held that since the trafficking of a person was incorporated by virtue of the Criminal Law Amendment Act, 2013, which came into force only on 03.02.2013, and the allegations related to the year 2006, much before the incorporation of the offence of trafficking of a person, the offence under section 370 IPC cannot have any application.

4. I have heard Sri. Ashi M.C. learned Public Prosecutor for the petitioner as well as Sri. I.V. Pramod, the learned counsel for the respondents.

5. The statement of the prosecution witnesses prima facie reveals a gruesome case of sexual exploitation of two ladies. They were, according to the prosecution, taken to Dubai and allegedly subjected to repeated sexual exploitation more than 350 times within a short span of a few weeks. According to the prosecution, the deposition of the witnesses makes out a case of slavery coming within the purview of section 370 IPC as it stood in 2006, the time when the incident is alleged to have occurred.

6. No doubt, though slavery is not defined in the Indian Penal Code, 1860, section 370 IPC provided, prior to 2013, the importation, exportation, removal, buying, selling or disposing of and even the acceptance, reception or detention of a person against his will as a slave, as an offence punishable with imprisonment for seven years. Section 370 IPC as it stood prior to 2013 reads as below:

“S. 370. Buying or disposing of any person as a slave:

Whoever imports, exports, removes, buys, sells or disposes of any person as a slave, or accepts, receives or detains against his will any person as a slave, shall be punished with imprisonment or either description for a term which may extend to seven years and shall also be liable to fine.”

7. However, the Criminal Law (Amendment) Act, 2013, brought into effect from 03-02-2013, replaced section 370 with the provision for the trafficking of a person. Notwithstanding the above substitution, the earlier provision will apply for offences committed until the coming into force of the Amendmen