Insufficient prima facie evidence can lead to quashing of charges under trafficking statutes.

ORDER :

Syam Kumar V.M., J.

This Criminal Miscellaneous Case is filed by the petitioner seeking to quash Annexure A1 FIR and Annexure A2 Final Report in Crime No.913 of 2016 of Ernakulam Town North Police Station, pending as C.P.No.12 of 2020 before the Additional Chief Judicial Magistrate Court, Ernakulam.

2. Petitioner is arrayed as 3^rd accused in the above crime and is charged with having committed offences punishable under Sections 370 (3), 370 (4) and 34 of the Indian Penal Code ( IPC ) and Section 79 (1) of the Juvenile Justice Act , 2015 (for short 'JJ Act').

3. The prosecution case is that pursuant to the complaint received from the Child Welfare Committee, the statement of CW1 was recorded, wherein she had stated that she, who hails from Orissa and was aged 17 years, had been brought to Kerala by the 1^st accused and was handed over to the 2nd accused, who is also a native of Orissa. The 2^nd accused thereafter handed her over to the petitioner, who, in turn, after receiving a consideration of Rs.6,000/-, delivered her to the 4^th accused for employment as a domestic help. Based on the said statement, the above crime was registered wherein the petitioner was arrayed as the 3rd accused. She seeks to quash the charge and the proceedings initiated against her, terming them illegal and unsustainable.

4. Heard Sri. Manu Roy, Advocate for the petitioner and Sri.Alex M. Thombra, the learned Public Prosecutor. Regarding service on the 3rd respondent, the Registry has reported that the notice issued to her at her Orissa address has not been returned.

5. It is submitted by the learned counsel for the petitioner that though it is alleged that CW1 is a minor during the relevant time, her birth certificate or any other proof of age had not been obtained or produced to prove her age. According to the learned counsel, Section 79 (1) of the JJ Act is thus not attracted, and no prima facie case to attract a charge under the said Section has been made out. On the said count itself, it is submitted that the charge laid against the petitioner is fit to be quashed.

6. Further, it is contended by the learned counsel that at the time of registering the FIR, the petitioner was not even arrayed as an accused nor was her role anywhere mentioned. Later, she was added to the list of the accused in the Final Report solely to wrongly implicate her in a criminal case. It is submitted that, even taking into account the statements in the Final Report, the purported role of the petitioner is not mentioned or revealed, even prima facie, in any manner. Based on Section 370 (3) of the IPC , it is contended that the said Section contemplates a situation where the offence of trafficking involves more than one person. The said Section, according to the learned counsel, would thus be attracted only in situations where more than one person had been subjected to trafficking. Materials on record disclose allegations only with respect to a single victim, namely CW1. Thus, the charge laid under 370 (3) of the IPC  the is unsustainable. It is further submitted that 370 (4) IPC specifically deals with the trafficking of a minor. However, to invoke the said provision, the prosecution must prima facie establish that the victim was under 18 years of age at the time of the alleged occurrence. In the present case, no reliable documentary evidence, even prima facie, to substantiate that CW1 was a minor has been produced. In view of such stark absence of any material to prove the age of the alleged minor involved, the ingredients of 370 (4) IPC are not made out. It is thus