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NILOFAR AND NILAM USMAN SHAIKH V/S STATE OF GUJARAT, decided on Thursday, October 14, 2004.
[ In the High Court of Gujarat at Ahmedabad, Criminal Revision Application Appeal No. 628 of 2004. ] 14/10/2004
Judge(s) : J.R. VORA
Advocate(s) : N.V. Solanki, Nishith P. Thakkar, P.D. Bhate.
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  "2005 (2) GLH 68"  ==   "2005 (2) GCD 1336"  







    Immoral Traffic (Prevention) Act 1956 - Section 3 Section 4 Section 5 Section 6 Section 7 Section 9 Section 2(a) -Indian Penal Code 1860 ? Section 366A -Code of Criminal Procedure 1973 ? Section 227 Section 397 Section 401 -     J.R. VORA J.(1) APPLICANTS of both these revision applications are amongst the accused of Sessions case No. 32/2004. In the said case in CR No. II-3002/2003 a charge-sheet came to be submitted against all the accused for the offences punishable under sec. 3 4 5 6 7 and 9 of Immoral Traffic (Prevention) Act 1956. The case being triable by the Court of Sessions by virtue of sec. 6 and 9 of the said Act was committed to the City Sessions Court Ahmedabad. The applicant of Criminal Revision Application No. 628/2004 Nilofar @ Nilam daughter of Ushman Shaikh vide application ex. 14 and applicant Hasmukh Rameshchandra Shah of Criminal Revision Application No. 641/2004 preferred an application at Exh. 3 to discharge them from the charges levelled against them. Both the said applications came to be dismissed vide order of ld. Addl. Sessions Judge Court No. 19 Ahmedabad dated 5. 8. 2004 and hence these revision applications. (2) UPON the request of the ld. counsels for the parties both these matters were heard finally as paper book was provided by ld. advocates for applicants. (3) FACTS indicate that P. I. Vaghela of Crime Branch Ahmedabad City had information that applicants for prostitution in contact with agents of outside of Gujarat procure girls at Ahmedabad and keeps them in a house at Vanshri society and other two hotels named as signore and platinum. In the above said hotels the applicants provide girls for prostitution to the customers and therefore basing his action on this information on 5. 2. 2003 called panch Pankajbhai panch Mukeshbhai and also female panch Manjulaben. They were informed about the details of information. A trap in shape of a raid was decided to be arranged at Hotel Signore. It was decided that panch Pankajbhai should act as decoy panch and should assume himself to be a customer and he was provided with 10 currency notes each of denomination of Rs. 500/ -. It was decided that when a girl is provided for prostitution the decoy panch should alert the police party through Mobile Phone. Accordingly a trap was arranged and P. I. Vaghela received Mobile call from decoy panch and therefore with other panchas police proceeded towards hotel Signore where they found accused no. 1 (nonapplicant) at the reception and taking him with them went to room no. 112 of the hotel. In the said room a girl named Reshma Vahidkhan was found along with decoy panch Pankajbhai. Her purse was searched and from her purse two currency notes each of Rs. 500/- numbers of which were noted in advance by the police in the panchnama were found and thereafter police officers raided Bunglow no. 3 of Vanshri Society situated at Drive-in Road. They found other victim girls Nisha @ Gudiya Kruparam Sharma of Madhya Pradesh and Vimla Prakash Shetty of Banglore. The process of searching the said house was going on and at that juncture applicants Hasmukh and Nilofar along with two other girls came there in one Maruti Van driven by one Manoj Shivdas. Hasmukh was searched and during search 4 notes each denomination of Rs. 500/- of the numbers noted in advance in panchanama were found from him. The girl accompanying them was named Salma belonged to Bombay. Police thereafter also searched Hotel Platinum along with Hasmukh and Nilam where on reception accused Harish and accused Irfan were found. Other accused Anand Jhonbhai also was found from the said hotel. All of them searched room no. 407 and from the said room victim girl Priti Harish of Bombay and Rina Ramkumar also belonged to Bombay were found. After recording of the statements of victim girls and other necessary witnesses a charge-sheet as above said came to be filed against in all 12 accused persons for the offence punishable as aforesaid. (4) LD. advocates for the revisionists-applicants made statements that though before the Court of Sessions an application for discharge vide ex. 3 and 14 were filed for discharging the applicants from all the charges but so far as these revision applications are concerned they restrict their arguments for the discharge of the applicants from the charge of sec. 6 and 9 of the Immoral Traffic (Prevention) Act 1956. (5) MR. NV Solanki ld. advocate in Criminal Revision Application No. 641/2004 contended that the ld. trial judge erred in dismissing their applications for discharge at least in respect of Sections 6 and 9 of the Immoral Traffic (Prevention) Act 1956. Drawing the attention of this Court towards Section 9 of the said Act it was vehemently urged that two essential ingredients of the said section namely seduction and having the custody charge or care of or a position of authority over any person are totally missing even if prosecution case is taken on its face value. For Sec. 6 of the said Act it was also contended that the essential ingredients of detaining any person is missing referring to the definition of brothel as given by Section 2 (a). It was contended that the place from where the girls staying on their own found by the police could not be said to be brothel. These legal contentions were advanced with the aid of the facts of this case. Going through the statements of the victim girls as recorded by the police i. e. the statements of Salma @ Shital Reshma D/o Vahidkhan Vimla D/o Prakash Mangesh Shetty Nisha Gudiya D/o Kruparam Jagatnarayan Sharma Priti D/o Harishbhai Jigneshbhai and Rina D/o of Ramkumar Shambhunath. All the statements were read by ld. advocates before this court and it was contended that each of this victim girls according to their own statements were not brought to Ahmedabad by any compulsion and not directly by any of the applicants. Most of the victim girls were already professing prostitution and on their own they came to Ahmedabad and contacted the applicants. It is not the prosecution case according to the ld. advocates for the applicants that any of the victim girl was induced seduced or by threat or compulsion was brought to Ahmedabad for professing prostitution. On the contrary most of the victim girls were before reaching to Ahmedabad professing prostitution. Therefore it was submitted that even as per the prosecution case as disclosed from the statements of the victim girls essential two ingredients as above of section 9 are missing and in no circumstances it could be said from the above statements that the victim girls were in charge or in custody or applicants were in a position of authority over the victim girls and that they were seduced aided abetted in professing prostitution by the victim girls. It was also contended that before victim girls reached Ahmedabad none of the applicants was known to any of the victim girls nor any of the victim girl was known to the applicants and therefore there was no connection at all between the victim girl and the applicants as to attract the ingredients of seduction and having charge and custody of the victim girls as mentioned in sec. 9. It was contended that it amply comes out from the police papers that when police raided Vanshri Bunglow the same was not locked from inside and none of the applicants was found at that time in the Bunglow. Doors were unlocked which were opened and police had easy excess. It was contended that therefore the girls which were found in the said Vanshri Bunglow were residing there by their own free will as stated by them in their statements. Their movements were not restricted as to even assume any sort of detention in respect of such victim girls to attract even sec. 6 of the said Act. It was therefore contended that none of the applicants can be tried for the offences punishable either under sec. 6 or under sec. 9 of the said Act as there was no prima-facie such evidence against the applicants from the police papers. Ld. advocates for the applicants placed heavy reliance on two decisions one of the Apex Court in the matter of Ramesh vs. The State of Maharashtra as reported in AIR 1962 SC 1908 and a decision of this Court in the matter of Suresh Prahlad Patel vs. State of Gujarat in Criminal Revision Application NO. 414/2002 delivered on 22. 10. 2002. My attention was drawn to the decision of the Apex Court wherein with reference to Sec. 366a of Indian Penal Code the Apex Court has interpreted the term seduce as used in the said section. It is contended that word seduction as has been used in Sec. 9 connotes the same meaning and interpretation herein in sec. 9 of the Immoral Traffix (Prevention) Act 1956 as has been used in Sec. 366a of Indian Penal Code. It was argued that seduction according to the Supreme Court amounts to surrender of her body by a woman who is otherwise reluctant or unwilling to submit herself to illicit intercourse in consequence of persuasion flattery blandishment or importunity whether such surrender is for the first time or is preceded by similar surrender on earlier occasions. It was also contended that in para-8 the Apex Court made it clear that where a woman offers herself for intercourse for money not casually but in the course of her profession as a prostitute there are no scruples nor reluctance to be overcome and such surrender by such woman is not seduction within the meaning of Sec. 366a and the same meaning must be of word seduction used in sec. 9 of the Act. It was contended that going through the statements of victim girls it is clear that each victim girl was offering her body for intercourse by way of prostitution not casually but professionally for money. At the most the applicants might have assisted but such assistance is not an offence within the meaning of sec. 6 or Sec. 9 as observed in the above said judgment of Ramesh vs. State of Maharashtra (supra). It was stated that the ld. trial judge swayed away by a fact of socially exploitation of female but if at all such offence is committed by the applicants then it is taken care of by Sec. 4 5 and 7 but in no case from the facts emerging as above said sec. 6 or Sec. 9 of the above said Act any time attracted. In the decision of this Court in Criminal Revision Application No. 414/2002 the accused applicant Suresh Prahladbhai Patel owner of Hidway hotel was charged with sec. 9 of the above said Act and on rejecting the application for discharge for sec. 9 by the trial court and filing the revision application before High Court the Court observed that from the statements of the victim girls it was clear that none of the victim girls stayed in hotel Hidway owned by that revisionist and it could not be said that any of the victim girls was under custody or charge or care of that revisionist who was the owner of the hotel. The case of the prosecution was that the accused owner of Hidway hotel was providing accommodation to customers and victim girls for prostitution. Relying upon the interpretation of term seduction as made by the Apex Court in the case of Ramesh vs. State of Maharashtra (supra) the said revisionist came to be discharged by this Court from the offence punishable under sec. 9 of the said Act. This decision is also heavily relied upon the ld. advocates for the applicants for the contention that when all the victim girls were professing prostitution before coming in the contact with the applicants none of the victim girl was detained as their any of the movement was not restricted nor they were tempted seduced or induced to come to Ahmedabad for the prostitution nor any of the victim girl was in-charge or custody of any of the applicants the charge under sec. 6 and 9 against the present applicants are required to be quashed so as to discharge them. It was contended that ld. trial judge misconstrued the interpretation made by the Supreme Court in the above said case of Ramesh vs. State of Maharashtra (supra) and brushed aside the decision of this Court in Criminal Revision Application No. 414/2002. It is therefore contended that these revision applications be allowed and the revisionists be discharged from the above said charges under sec. 6 and 9.(6) LD. advocate Mr. NP Thakkar almost advanced similar arguments in Criminal Revision Application No. 628/2004 for the applicant stating that the facts which emerges from the prosecution case at the most are taken care of by Sec. 4 and 5 of the said Act and neither Sec. 6 nor Sec. 9 is attracted. He also referred to the statements of victim girls and stated that for only purpose of earning each girl on her own will reached to Ahmedabad and on her own will engaged in the profession of prostitution. He submitted that so-called Mahesh and Neha of Bombay referred to in the statements of victim girls are not accused in this case nor their statements are recorded by the police. Nowhere in the evidence the element of compulsion inducement or seduction is found on the part of the applicants. On the contrary it is clear from the statements that due to poor financial circumstances each girl leaned towards professing prostitution for which applicants were not responsible. It was urged that revision applications be allowed and applicants be discharged. (7) ON the otherside ld. APP Mr. PD Bhate also read the statements of victim girls and stated that the girls were procured by the present applicants through their network of agents which is clear from the statements. My attention was drawn again to the definition of brothel house as envisaged by the Act vide Sec. 2 (a). It was stated that even Vanshri Bunglow according to the statements of witnesses can be termed as brothel house within the meaning of sec. 2 (a) of the Act so as to attract sec. 6 of the Act. It was stated that girls were kept at Vanshri Bunglow and in a room of Platinum Hotel providing facilities of residence and other amenities would amount to detention in brothel house within the meaning of sec. 6 of the said Act. Particularly my attention was drawn to the statement of Salma wherein she stated that she was brought to Ahmedabad by one woman named as Neha from Bombay and at Ahmedabad she was picked up by present applicants who reaching at the S. T. Bus Stand in Maruti Van and she was placed at Vanshri Bunglow. In her statement though she has stated that she was not professing any prostitution and was doing only household work in the said Bunglow but she might have been brought for any other purpose on account of dire financial position of the family. Ld. APP stated that the network which was used by the present applicants to bring Salma also was the same which was used to bring some other victim girls from Mumbai. It was stated that seduction can be established even from this statement only. It was stated that there may be many intentions of the applicants for bringing Salma to Ahmedabad. It was stated that in the statements of the victim girls some common names are found and these are the names of one Mahesh and Neha. These denotes the network of seduction by the applicants. My attention was also drawn to some other statements of witnesses who were neighbours of Vanshri Bunglow. Witness Sarlaben and others stated that Vanshri Bunglow was taken on rent by the applicants and they have seen different girls in the said bunglow. Secretary of the said housing complex Shri Bhaskarbhai stated before the police that the said Bunglow was taken on rent by the applicants and according to ld. APP from the statements of the victim girls it is clear that the victim girls were detained in the said Bunglow and that the same can be termed as brothel house. My attention was drawn to the judgment of the ld. trial judge wherein at internal page 6 of the judgment the ld. trial judge observed that detaining any person in any premises for the purpose of intercourse except husband attracts sec. 6 and as per the facts of the prosecution case Sec. 6 was attracted for the above reason. My attention was also drawn to the observation of the ld. trial judge where ld. trial judge after mentioning the ingredients of sec. 9 observed that both the applicants procured girls of poor financial conditions from other States and kept at Vanshri Bunglow for professing prostitution. Ld. trial judge observed that all the victim girls were unknown and unfamiliar with the Ahmedabad City and were completely therefore in control of the applicants. My attention was also drawn to the observation of the ld. trial judge that the ld. trial judge considered the decision of the Supreme Court in the case of Ramesh vs. State of Maharashtra (supra) and came to the conclusion that at the stage of the discharge the said case was not helping the applicants because it was a decision in second appeal after trial and ld. trial judge distinguished the facts of the case of this court in the matter of Suresh Prahladbhai Patel vs. State of Gujarat in Criminal Revision Application No. 414/2002 when both the above decisions were cited before the ld. trial judge. It was therefore stated that the ld. trial judge has taken overall view which was required to be taken at that juncture after considering all aspects rejected the applications of applicants and hence order impugned requires no interference in revisional jurisdiction. (8) HAVING heard the ld. counsels for the parties in these revision applications it is to be decided whether the order impugned rejecting the applications of revisionists is illegal improper or irregular. True it is that while dealing with an application to discharge the accused under sec. 227 of the Code of Criminal Procedure the court is required to go through each aspects of the case and to come to the conclusion whether any prima-facie case was made out against the given accused and therefore sec. 227 of the Code of Criminal Procedure mandates that after considering all the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf if court considers that there is no sufficient grounds for proceeding against the accused the court shall discharge the accused. So this court in complete agreement with the ld. advocates for the revisionists that court has to look upon all the aspects while dealing with the application for discharge. True it is that for framing of the charge the court is not required to give reasons but while rejecting the application or allowing the application under sec. 227 of the Code of Criminal Procedure for discharge the court is required to record reasons. But so far as this case is concerned it could not be said that the trial court dealt with the applications of the accused cursorily and did not give reasons. Therefore the reasons given by the trial court and conclusion arrived are required to be examined within the scope of sec. 397 and 401 of the Code of Criminal Procedure by this Court. (9) SEC. 6 9 and 2 (a) defining brothel of the the Immoral Traffic (Prevention) Act 1956 are under:6. Detaining a [person] in premises where prostitution is carried on.- (1) Any person who detains [any other person whether with or without his consent] - (a) in any brothel or (b) in or upon any premises with intent [that such person may have sexual intercourse with a person who is not the spouse of such person] shall be punishable [ on conviction 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: Provided that the court may for adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than seven years]. [ (2) Where any person is found with a child in a brothel it shall be presumed unless the contrary is proved that he has committed an offence under sub-section (1). (2a) Where a child or minor found in a brothel is on medical examination detected to have been sexually abused it shall be presumed unless the contrary is proved that the child or minor has been detained for purpose of prostitution or as the case may be has been sexually exploited for commercial purpose. ] (3) A person shall be presumed to detain a woman or girl in a brothel or in or upon any premises for the purpose of sexual intercourse with a man other than her lawful husband if such person with intent to compel or induce her to remain there - (a) withholds from her any jewellery wearing apparel money or other property belonging to her or (b) threatens her with legal proceedings if she takes away with her any jewellery wearing apparel money or other property lent or supplied to her by or by the direction of such person. (4) Notwithstanding any law to the contrary no suit prosecution or other legal proceeding shall lie against such woman or girl at the instance of the person by whom she has been detained for the recovery of any jewellery wearing apparel or other property alleged to have been lent or supplied to or for such woman or girl or to have been pledged by such woman or girl or for the recovery of any money alleged to be payable by such woman or girl. 9. Seduction of a [person] in custody.- [***] Any person who [having the custody charge or care of or a position of authority over any [person]] causes or aids or abets the seduction for prostitution of that [ person] [ shall be punishable on conviction 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: Provided that the court may for adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than seven years]. 2. Definitions.- In this Act unless the context otherwise requires - (a) brothel includes any house room [conveyance] or place or any portion of any house room [conveyance] or place which is used for purposes [ of sexual exploitation or abuse] for the gain of another person or for the mutual gain of two or more prostitutes;(10) WHILE deciding the request of the accused to discharge him for the charges levelled against him sufficient grounds for proceeding against the accused as envisaged by sec. 227 of the Code of Criminal Procedure must be construed meaningfully and wider. After considering the record of the case the documents submitted prima-facie scrutinising the same a court should come to the conclusion that whether there is prima facie material on record to proceed against the accused for judicial finding. In this process if the material indicates strong and serious suspicion about complicity of the accused in the crime than the court should frame the charge against the accused. Truth veracity and effect of material produced by the prosecution at this stage is not required to be adjudicated nor strict standards of proof and the test of scrutiny of the evidence as to the guilt or otherwise of the accused is not to be applied by the courts at this stage. So far as possible an exercise be undertaken to assess the material on record with a view to find out that if the facts emerging from material on record taken at their face value disclose the existence of ingredients of the offence alleged. At the same time court must not reduce itself as a mouth of the prosecution and cannot take whatever prosecution states as gospel truth. The court may in this narrow scope shift the evidence as it cannot be expected at this stage to appreciate the evidence. The exercise undertaken at this stage of framing of the charge by the court should be with a view to find out whether there is no sufficient ground for proceeding against him. This exercise should be detached distinctly from the process of arriving at the conclusion that whether the accused is guilty of certain offences or not. (11) MAIN thrust of the argument was that there is no ingredient of detention as envisaged by sec. 6 of Immoral Traffic (Prevention) Act 1956 and could not be established by the prosecution at even prima-facie stage nor two above mentioned essential ingredients of sec. 9 of the Act could be said to have been established by the prosecution and that the ld. trial judge did not consider this aspect. (12) BEFORE going through the interpretation of seduction as laid down by the Apex Court in the case of Ramesh vs. State of Maharashtra (supra) it is necessary to look at the facts of the case in shape of the statements recorded by the Investigating Agency under sec. 161 of the Code of Criminal Procedure and to shift and assess the same for the purpose whether charge under sec. 6 and 9 of the Act can be framed against applicants or whether even if the prosecution case taken on its face value would attract such charge qua applicants and in those circumstance they will be entitled to be discharged. (13) TRUE it is that out of the victim girls Reshma Vahidkhan Vimla D/o Prakash Mangesh and other two girls namely Priti D/o of Harishbhai Jigneshbhai and Rina D/o of Ramkumar Shambhunath were plying profession of prostitution before they contacted the applicants but two statements namely the statement of Salma @ Shital and statement of Nisha @ Gudiya D/o Kruparam Jagatnarayan Sharma are required to be thoroughly seen with reference to the case made out by the prosecution at this stage. (14) THE statement of Salma @ Shital denotes that she was staying at Bombay with her mother Reshma and brother Anus aged about 5 years and sister Muskan aged about 15 years. Her father died before eight months of the incident. Her mother was doing household work in the houses of others. Ten days before the incident she along with one girl named Neha came to Ahmedabad from Bombay in a luxury bus and Neha introduced her to applicant Hasmukh who had come to S. T. Stand with his Maruti Van Car and one female named as Nilam. Neha after discussing something with the applicants Hasmukh and Nilam made Salma to sit in the said Maruti Van and she was taken to Vanshri Bunglow where she found that other girls namely Nisha and Vimla were also staying. She stated that those girls conveyed her that due to their poor financial condition they came to Ahmedabad for prostitution. She stated that she did not enter into prostitution but did household work for money. (15) THIS statement of Salma is important from the aspect that she was taken to Ahmedabad by girl Neha of Bombay and in almost all cases of victim girls Neha and Mahesh are found to have contacted victim girls and persuaded them to come to Ahmedabad and contact the applicant. It is pertinent to note also in respect of statement of Salma that in her statement she has not stated that before coming to Ahmedabad it was discussed with Neha that she was to come to Ahmedabad at Vanshri Bunglow for doing only household work. Salma is aged only 17 years. Grave suspicion which arises from this statement and from the circumstances indicating the conduct of Neha with this girl Salma and subsequent conduct with the applicant is that she might have also been lured for some other purpose. (16) WHILE important statement of witness Nisha Gudiya D/o Kruparam Jagatnarayan Sharma is required to be taken into consideration seriously. Free translation of the statement of Nisha @ Gudiya is as under: my name is Nisha @ Gudiya D/o Kruparam Jagatnarayan Sharma aged 20 years resident of Building No. EWS/22 Manoharnagar Bhungav Chhavarpur Madhya Pradesh. On inquiry I state that I was residing at the above address with my parents and brothers and was studying in M. A. Part-I at Chhattarpur Maha Vidyalaya. My father was serving in Automac Paints Co. but he met with an accident and is bed ridden now. Mother Sima is doing household work. I have two brothers namely (1) Chandul aged about 15 years and (2) Anil aged about 13 years. They are studying. Due to our bad financial circumstances on 15. 1. 2003 in pursuance of one advertisement I had been to one interview at Chhattarpur (M. P.) in Max Management Company. I had given my bio-data there and was called on other day. There one boy named as Mahesh met me. He stated that he also had come for job. He also stated that if my selection is not done there then he would get a service for her at Ahmedabad. He stated that he belongs to Ahmedabad and he had good acquaintance in a company and lodging and boarding will also be arranged by the said company and offered me to contact on 30th January and gave telephone No. 635678. So I contacted him on the above telephone number and he met me before the office of Max Management Company. He told me that I was to join a job at Ahmedabad on 1. 2. 2003 and said me to prepare clothes etc. Therefore I went to my house prepared my bag and came to Mahesh. Both of us boarded Jodhpur-Hawda train from Chhattarpur Railway Station and reached Ahmedabad at morning of 1. 2. 2003 and in one autorickshaw we moved and after parking autorickshaw near Sardar Patel Park area he went for making a phone and after making such phone within sometime one Maruti Van came. In the said Maruti Van one fat man named as Hasmukh and one girl named as Nilam @ Nilofar was there. Mahesh made me to sit in the said Maruti Van and he went away. I was taken to Vanshri society Bunglow no. 3 and on second day Hasmukh and Nilam took me to market and Jean Pants and two tops were purchased for me. There were other girls also. Hasmukh told me to do the job to offer my body and said that there will be good return and I was prepared to do this job. Thereafter on 4. 2. 2003 agent Karan and Anand came to Hasmukh and conveyed Hasmukh that there is a customer. Hasmukh brought me in his Maruti Van No. GJ-1-PP-1053 driven by one Manoj Patil to a autorickshaw stand. This time Nilam was also accompanying. I was made to alighted at autorickshaw stand where a customer was present and I was told to go with that customer. Customer gave Rs. 5000/- and after taking this amount driver Manoj and Nilam went away in Maruti Van. On inquiry I knew that the name of the customer was Mitesh. He took me to one flat. I do not know the address of the said flat. For whole night I was engaged in physical intercourse. In the morning Hasmukh was contacted on Mobile and thereafter he left me with Hasmukh in Autorickshaw. Today I and the other girl Vimla who said that she belongs to Banglore were in bunglow at Vanshri Society and police raided the said building. During this time Hasmukh Nilam and driver Manoj came there and they were also arrested. One agent named as Karan was also coming with Hasmukh. The above fact is correct as stated by me. Date:6. 2. 2003 Before T. A. Barot P. I D. C. B. Ahmedabad City(17) NOW with reference to this statement it is necessary to refer to the term seduction interpreted by the Supreme Court in the above said case of Ramesh vs. State of Maharashtra (supra). The Supreme Court in para-8 in unequivocal terms stated that seduction to illicit intercourse contemplated by the section does not mean merely straying from the path of virtue by a female for the first time. The verb seduce is used in two senses. It is used in its ordinary and narrow sense as inducing a woman to stray from the path of virtue for the first time; it is also used in the wider sense of inducing a woman to submit to illicit intercourse at any time or on any occasion. It is in the latter sense that the expression has been used in Ss. 366 and 366a which sections partially overlap. (18) RELYING upon this interpretation made by the Supreme court of term seduction it is argued that there is no compulsion in the present case on the part of the applicants to profess prostitution on any of the victim girl. It is necessary that para-8 of the above said decision may be quoted here:8. We agree that seduction to illicit intercourse contemplated by the section does not mean merely straying from the path of virtue by a female for the first time. The verb seduce is used in two senses. It is used in its ordinary and narrow sense as inducing a woman to stray from the path of virtue for the first time it is also used in the wider sense of inducing a woman to submit to illicit intercourse at any time or on any occasion. It is in the latter sense that the expression has been used in Ss. 366 and 366a of the Indian Penal Code which sections partially overlap. This view has been taken in a large number of cases by the Superior Courts in India e. g. Prafullkumar Basu vs. Emperor ILR 57 Cal 1074: (AIR 1930 Cal 209); Emperor v. Laxman Bala ILR 59 Bom 652: (AIR 1935 Bom 189); Krishna Maharana v. Emperor ILR 9 Pat 647: (AIR 1929 Pat 651); In Re Khalandar Saheb AIR 1955 Andhra 59; Suppiah v. Emperor AIR 1930 Mad 980; Pessumal v. Emperor 27 Cri LJ 1292: (AIR 1927 Sind 97); Emperor v. Nga Ni Ta 1- Bur LR 199 and Kartara v. The State ILR (1957) Punj 2003: (AIR 1958 Punj 323). The view expressed to the contrary in Emperor v. Baijnath ILR 54 All 756; (AIR 1932 All 409) Shaheb Ali v. Emperor ILR 60 Cal 1457: (AIR 1933 Cal 718); Aswini Kumar Roy v. The State (S) AIR 1955 Cal 100 and Nura v. Emperor AIR 1934 Lah 227 that the phrase used in S. 366 of the Indian Penal Code is properly applicable to the first act of illicit intercourse unless there be proof of a return to chastity on the part of the girl since the first act is having regard to the object of the Legislature unduly restrictive of the content of the expression seduce used in the Code. But this is not a case in which a girl who had strayed from the path of virtue when she was in the custody of her guardian and had with a view to carry on her affair accompanied her seducer or another person. Such a case may certainly fall within the terms of S. 366 or S. 366a whichever applies. But where a woman follows the profession of a prostitute that is she is accustomed to offer herself promiscuously for money to customers and in following that profession she is encouraged or assisted by someone no offence under S. 366a is committed by such person for it cannot be said that the person who assists a girl accustomed to indulge in promiscuous intercourse for money in carrying on her profession acts with intent or knowledge that she will be forced or seduced to illicit intercourse. Intention of the part of Patilba or knowledge that Anusaya will be forced to subject herself to illicit intercourse is ruled out by the evidence. Such a case was not even suggested. Seduction implies surrender of her body by a woman who is otherwise reluctant or unwilling to submit herself to illicit intercourse in consequence of persuasion flattery blandishment or importunity whether such surrender is for the first time or is preceded by similar surrender on earlier occasions. But where a woman offers herself for intercourse for money - not casually but in the course of her profession as a prostitute - there are no scruples nor reluctance to be overcome and surrender by her is not seduction within the Code. It would then be impossible to hold that a person who instigates another to assist a woman following the profession of a prostitute abets him to do an act with intent that she may nor with knowledge that she will be seduced to illicit intercourse. (19) IT is also relied upon the observation of the Supreme Court that where a woman follows the profession of a prostitute that is she accustomed to offer herself promiscuously for money to customer and in following that profession she is encouraged or assisted by someone no offence under Sec. 366a is committed by such person. It was therefore argued that at the most the present applicants assisted victim girls who were promiscuously offering themselves to customers for money and were professing prostitution. (20) IT must be borne in mind that these observations of the Supreme court are with reference to the facts of the case wherein girl Anusaya in that case was professing prostitution and her step father Patilba once only accompanied her and her friend to Theatre and thereafter to customers and in those circumstances the Supreme Court observed as above with reference to the issue whether Patilba had seduced Anusaya and her friend for having sexual intercourse with customers. In the present case the circumstances are different altogether and having regard to the statement of Nisha even this sole statement is sufficient to invite sec. 9 of the Immoral Traffic (Prevention) Act 1956 even as per the term interpreted by the Supreme Court. Girl Nisha was not professing prostitution before she contacted present applicants. On dire financial conditions as per the say of one Mahesh she came to Ahmedabad and was kept at Vanshri Bunglow by the applicants and agreed to offer her body to customer for money. Only because she agreed as stated in her statement it could not be said that she was professing prostitution and that applicants only assisted her. On the contrary the facts of the case is well covered by the interpretation of Supreme Court made in the case of Ramesh vs. The State of Maharashtra (supra) that the term seduction in sec. 366 and 366a is used not only in its ordinary sense but in wider sense of inducing a woman to submit to illicit intercourse at any time or on any occasion. Nowhere in the said judgment the Supreme Court observed that for seduction there should be an element for compulsion. In para-8 the Supreme Court observed that seduction implies surrender of her body by a woman who is otherwise reluctant or unwilling to submit herself to illicit intercourse in consequence of persuasion flattery blandishment or importunity whether such surrender is for the first time or is preceded by similar surrender on earlier occasions. This observation of the Supreme court covers the facts of the present case even considering a single statement of above witness Nisha for prima-facie application of sec. 9 and so far as ingredients seduction is concerned that had the financial position of victim girl Nisha remained good perhaps she would not have surrendered her body to a customer on the persuasion of applicants about good return etc. The network which is prima-facie disclosing from the police papers it is clear that not directly but through other persons females having dire need of money were searched and were brought to Ahmedabad and kept at Vanshri Bunglow by the present applicant.(21) ALL the statements of the victim girls denote that they were all in very bad shape financially as well as in family affairs. They were not known to Ahmedabad. Some of the victim girls were already professing prostitution and in temptation of earning more money they could be trapped to come to Ahmedabad for such profession. While girl like Nisha and Salma who did not know that they were to be lured to prostitution were brought to Ahmedabad and kept either at Vanshri Bunglow or at some hotel. Except this they had no resort to go. The expression used in sec. 9 having the custody charge or care of or a position of authority over any person must be construed in wider sense. There was perhaps no other alternative for these victim girls to go elsewhere except to stay at Vanshri Bunglow or at some hotel where they were placed by the applicants. True it is that their all movements might not have been restricted but that would not take out the case at present from the phrase as used in sec. 9 of having the custody charge or care of or a position of authority over any person. Ld. trial judge therefore rightly said that the elements of seduction as well as the other necessary ingredients of sec. 9 for the framing of the charge were present in the prosecution case. (22) SO far as sec. 6 of the Act is concerned the term detaining is also required to be interpreted widely and in parity of expression used in sec. 9 having the custody charge or care of or a position of authority over any person. Again the consent is not material for attracting sec. 6 even if any person agrees to stay in any brothel house or upon any premises as mentioned in clause (b) of sec. 6. Poor victim girls completely unknown to Ahmedabad procured from out State through agents like Neha and Mahesh and kept at some place after providing lodging and boarding and other facilities only for the purpose of sending them to willing customers for money certainly amounts to detention within the sec. 6 of the Act. What is required at this stage is if the prosecution case is taken on its face value whether any charge can be framed against the accused persons. Whether the prosecution case is true or false cannot be judged at this juncture. In the matter of State of M. P. vs. S. B. Johari and Ors. as reported in 2000 (2) SCC P. 57 in para-4 the Apex Court has observed as under:4. In our view it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court it appears that instead of considering the prima facie case the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient nor not for convicting the accused. If the court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence if any cannot show that the accused committed the particular offence. In such case there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijiayya after considering the provisions of Sections 227 and 228 Crpc the Court posed a question whether at the stage of framing the charge the trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial. The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The court may peruse the records for that limited purpose but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh Union of India v. Prafulla Kumar Samal and Suptd. and Remembrancer of Legal Affairs W. B. v. Anil Kumar Bhunja and held thus:(SCC p. 85 para 7)from the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose sift the evidence as it cannot be expected even at the initial stage to accept all the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (23) EVEN the charge can be framed when material is produced before the court by the prosecution indicates strong suspicion about the complicity of the accused with the crime. (24) THEREFORE this Court is unable to accept the contention that necessary ingredients of sec. 6 and sec. 9 of the Immoral Traffic (Prevention) Act 1956 are missing and that no charge can be framed against the present applicants for the above said offences. So far as the decision of this court in Criminal Revision Application No. 414 of 2002 is concerned the trial court is correct that facts was altogether different from the facts of this case. In the said case of Criminal Revision Application NO. 414/2002 the owner of hotel was temporarily providing facilities in shape of rooms to customers and girls for having intercourse. This by no stretch of reasoning could be said to be seduction of any person having custody charge or care of or a position of authority over any person for aiding prostitution. The present case is not a case wherein only facility to customers and victim girls were provided as was provided by the owner of Hidway Hotel in Criminal Revision Application No. 414/2002 of this court. On the contrary the prosecution case discloses that though not through direct contact but with the aid of Agents victim girls were called at Ahmedabad and were kept at Vanshri Bunglow or at some hotel. Customers were found and girls were sent to the customers. Even if except victim girls Nisha and Salma it is accepted that they were professional prostitutes the question is not required to be probed deeply at this stage that the girls who voluntarily offers their body for money cannot be said to have seduced by the applicants. Evidence of statements of Nisha and Salma both is sufficient to invite charge under sec. 6 and 9 of the Immoral Traffic (Prevention) Act 1956. (25) NEEDLESS it is to say that these observations are being made by this court only for the purpose of framing of the charge against the accused which shall not come in the way of the ld. trial judge in any manner while deciding the trial. (26) FOR the above said reasons both these criminal revision applications stand dismissed. Rule is discharged in each matter.