Soni and 5 Others vs State

Janarthanam, J.—The inspector of Police (Law & Order), Tambaram-the respondent herein filed a final report u/s 173(2) of the Code of

Criminal Procedure, 1973 (for short ''the Code'') against the petitioners herein/accused 1 to 6 for the alleged offences under Ss. 3(1), 4(1), 6(1)

and 8(b) of the Immoral Traffic (Prevention) Act. 1956 (for short ''the Act'') before the Judicial Magistrate, Tambaram who took it on his file as

P.R.C.25/91.

Process appeared to have been issued to the accused in the Court below and all the accused appeared to have entered appearance through a

Counsel of their choice and copies of records had been furnished to them. It is, at this stage, the petitioners/accused ''1 to 6 resorted to this present

action, by filing a revision before this court and this Court admitted the revision on 6.12.1991, and ordered notice to the respondent.

Learned Government Advocate represented the respondent - state

Along with the revision, the petitioners/accused 1 to 6 also filed a Miscellaneous Petition in Crl.M.P.No. 7346 of 1991 for staying the

proceedings in the aforesaid P.R.Case pending disposal of this revision and the said stay petition came up for hearing to-day. Both learned counsel

appearing for the petitioners/accused 1 to 6 as well as learned Government Advocate consented for taking up the revision itself for final disposal

to-day.

Learned counsel for the petitioners would submit that learned Magistrate committed a serious error of law, in taking cognizance of the case as a

P.R.Case and therefore it is, he would say, that the case, if at all, can be taken cognizance of only as a Calendar case and this will be patent from a

consideration of the various provisions adumbrated in the Act as well as the Code.

Learned Government Advocate would however repel such a submission.

S.3 of the Act prescribes punishment for keeping a brothel or allowing premises to be used as a brothel. Keeping a brothel shall be punishable,

under sub-S.(1) thereof on first conviction, with imprisonment for a term of not less than one year and not more than three years and also with fine,

which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term not less

than two years and not more than five years and also with fine which may extend to two thousand rupees.

S.4 deals with punishment for living on the earnings of prostitution and the punishment provided therein shall be with imprisonment for a term

which may extent to two years with fine which may extend to one thousand rupees or with both and where such earnings relate to the prostitution

of a child or a minor, the punishment shall be with imprisonment for a term of not less than seven years and not more than ten years.

S.6 deals with detaining a person in premises where prostitution is carried on and the punishment provided therein shall be with imprisonment of

either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall

also be liable to fine. The section further provides for the imposition of a sentence of imprisonment for a term less than seven years for adequate

and special reasons to be mentioned in the judgment.

S. 8 makes provision for punishment for seducing or soliciting for purposes of prostitution and the punishment provided therein, on first

conviction, is imprisonment for term which may extend to six months or with fine which may extend to five hundred rupees, or with both and in the

event of a second or subsequent conviction, with imprisonment for a term which may extend to one year and also with fine which may extend to

five hundred rupees. A special provision has also been made in the case of an offence under this section having been committed by a male, who

shall be punishable with imprisonment for a period of not less than seven days but which may extend to three months.

From what has been provided for in the aforementioned sections, it is crystal clear that the offence falling under S.6 is punishable with

imprisonment not less than seven years, in the absence of special reasons to be mentioned in a judgment. So far as the offences falling under Ss.3

and 8 are concerned, the punishment is less than seven years in all eventualities and circumstances. But for the offence falling under S.4, two

specific punishments had been provided for. When the earnings relate to prostitution simplicitor, the punishment provided therefore is less than

seven years and when such earnings relate to the prostitution of a child or minor, the punishment shall be imprisonment for a term not less than

seven years and not more than ten years.

The First Schedule attached to the Code deals with Classification of Offences. The offences falling under the Indian Penal Code are classified

under one group under the caption ''I-Offences under the Indian Penal Code''. The offences against other Laws are grouped together under the

caption ''II-Classification Offences against other laws.

It appears at first sight, that the offence falling under S.6 of the Act being punishable with imprisonment for period not less than seven years is

exclusively triable by the Court of Session Under the Classification of offences against other laws. This perhaps could have been the reason for

learned Magistrate to have taken cognizance of the case as a Preliminary Register case. But a deeper study of the matter would point out that

taking cognizance of the case on hand as P.R.Case by learned Magistrate is not warranted by the sanguine provisions adumbrated under the Act

as well as under the Code.

S.26(b) of the Code Prescribes that any offence under any other law shall, when any court is mentioned in this behalf in such law, be tried by

Court and when no Court is so mentioned, maybe tried by-

(i) the High court, or

(ii) any other Court by which such offence is shown in the First Schedule to be triable.

It is not as if no special provision had been made in the Act as regards the trial of offences under the Act.

S.22 of the Act makes provision for the trial of certain offences under the Act. The section prescribes,

No Court, inferior to that of Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under S.3, S.4, S.5, S.6, S.7,

S.8.

The offences with which the petitioners/accused 1 to 6 had been charged, admittedly fall under the category of offences listed under S.22 of

the Act. As such, the combined effect of S.22 of the Act and S.26(b) of the Code, makes it abundantly clear that the offences with which the

petitioners/accused had been charged shall be triable only by a Judicial Magistrate of the First Class and not triable exclusively by a Court of

Session. In this view of the matter, taking cognizance of the case on hand as against the petitioners/accused I to 6 by the trial Magistrate as

P.R.case is not warranted by the provisions adumbrated under the Act and the Code and if at all he can take cognizance of the case as against

them only as a Calendar Case.

I may however point out here that if the trial Magistrate feels that on proof of the case against the petitioners/accused 1 to 6, he cannot

adequately punish them, it is legitimately permissible for him to have recourse under the provisions adumbrated under S.325(1) of the Code, which

prescribes,

Whenever a Magistrate is of opinion, after hearing the evidence for the prosecution and the accused, that the accused is guilty, and that he ought to

receive a punishment different in kind from, or more severe than, that which such Magistrate is empowered to inflict, or, being a Magistrate of the

second class, is of opinion that the accused ought to be required to execute a bond under S.106, he may record the opinion and submit his

proceedings, and forward the accused, to the Chief Judicial Magistrate, to whom be is subordinate.

In the result, the order of the trial Magistrate in taking cognizance of the case as against the petitioners/accused 1 to 6 as a P.R.Case is set

aside and he is directed to take cognizance of the said case on his file as a Calendar case and try the same according to procedure established by

law.