IMPORTANT POINT
The court established that prima facie evidence of trafficking and sexual harassment justified the continuation of criminal proceedings under IPC Sections 354A and 370.

ORDER :

1. This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure (Cr.P.C. for short hereinafter), by the accused, in Crime No. 975/2019 of Ernakulam North Police Station, now pending as S.C. No. 736/2019 on the files of the Assistant Sessions Court-II, Ernakulam, to quash the entire proceedings.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the relevant documents.

3. Here the prosecution alleges commission of offences punishable under Sections 354A(1)(ii) and 370(1) (b) of the Indian Penal Code (IPC for short hereinafter) by the accused.

4. While seeking quashment of this proceedings, the learned counsel for the petitioner argued that going by the prosecution allegations, none of the offences alleged would attract prima facie. It is also submitted that as per Annexure 5 order in Crl. M.P. No. 96/2020, the learned Assistant Sessions Judge dismissed the discharge petition filed by the petitioner, which was confirmed by the Sessions Judge, as per Annexure-6 order in Crl. R.P. No. 35/2021. According to the learned counsel for the petitioner, since the defacto complainant reached Chennai for attending an official meeting, it could not be held that the accused herein trafficked her for the purpose of exploitation by recruiting, transporting, harbouring, transferring or in other manner dealt under Section 370(1) of IPC so as to attract the said offence. It is also pointed out that even though there is an allegation that the accused demanded the defacto complainant to share her room, the same also would not by itself be sufficient to attract offence under Section 354A(1)(ii) of IPC.

5. Opposing the quashment prayer, the learned Public Prosecutor submitted that prima facie offences under Section 370(1)(b) as well as under Section 354A(1)(ii) of IPC would attract and thereby the learned Assistant Sessions Judge dismissed the plea for discharge and the Sessions Judge confirmed the same by Annexure 5 and Annexure 6 orders. Since prosecution materials would substantiate the offences prima facie, the matter would require trial and the quashment prayer would fail.

6. Assimilating the facts of this case, this Crime was registered pursuant to a complaint filed by the defacto complainant before the SHO, Central Police Station, Ernakulam. As per the complaint, the allegation is that while the defacto complainant was working as the General Manager of M/s. Mathew Associates Consultants (P) Ltd. Ernakulam, the accused who had been working as the Managing Director, committed the alleged offences on 31.05.2019.

7. Addressing the argument tendered by the learned counsel for the petitioner, it is necessary to consider the ingredients to attract offence under Section 370(1) of IPC. Section 370(1) of IPC provides as under:

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:

First - using threats.

Secondly - using force, or any other form of coercion.

Thirdly - by abduction.

Fourthly - by practising fraud, or deception.

Fifthly - by abuse of power.

Sixthly - 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.

8. Section 143 of the Bharatiya Nyaya Sanhita, 2023 (BNS for short hereinafter) is the pari materia provision to Section 370, although there are some differences in the phraseology. Section 143(1) of BNS reads as under:

143. Trafficking of person:

(1) Whoever, for the purpose of exploitation recruits, transports, harbours, transfers, or receives a