Kerala High Court
State Of Kerala vs Azeez on 12 April, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
CRL.MC NO. 992 OF 2019
AGAINST THE ORDER DATED 15.01.2019 IN Crl.M.P. NO.11/2019
IN SC NO.633 OF 2014 OF ADDITIONAL DISTRICT COURT &
SESSIONS COURT (FOR THE TRIAL OF CASES RELATING TO
ATTROCITIES & SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN),
ERNAKULAM
PETITIONER/PETITIONER/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY SUB INSPECTOR OF POLICE
THOPPUMPADY, ERNAKULAM.
BY SRI.M.C.ASHI, PUBLIC PROSECUTOR
RESPONDENT/RESPONDENT/ACCUSED 1 TO 6:
1 AZEEZ,
S/O.MUHAMMED,
C.C.XIII/50, PAPPANAGA PARAMBU(H),
NOW RESIDING AT FIFA TOWER BUILDING,
1ST FLOOR, PANAYAPPILLY DESOM, PIN-682005.
2 NAZEER AHAMMED,
S/O.MUHAMMED HAJI,
H.NO.16/260,
CHENGALA VILLAGE,
KASARAGOD, PIN-671121.
3 RAFEEK @ MEERAN KUNJU,
S/O.IBRAHIM,
ADUKA HOUSE,
ANSARI MANZIL, NEAR KEZIRYA ISLAM MASJID,
MUKKARIADUKA, MANGALPADY VILLAGE,
KASARAGOD DISTRICT, PIN-671324.
4 AHAMMED KHADER @ AHAMMED KUNJI,
S/O.KHADER,
H.NO.16/3,
Crl.M.C. No.992 /19 -:2:-
HAVIL MAHALLIL, CHENGALA VILLAGE,
KASARAGOD, PIN-671121.
5 USMAN @ MALAYIL USMAN,
S/O.MUHAMMED ALI,
MALAYIL HOUSE,
CHETTIPADY DESOM, CHETTIPADY.P.O.,
PARAPANANGADI VILLAGE, THIRURANGADI TALUK,
MALAPPURAM DISTRICT, PIN-676319.
6 ABDUL KHADAR,
S/O.YUSUF,
RUJAITH MANZIL,
NEAR BLARIYA JUMA MASJID,
CHUKARIADAKA BHAGAM, MANGALPADI VILLAGE,
KASARAGOD DISTRICT, PIN-671324.
BY ADVS.
SRI.I.V.PRAMOD
SRI.ASHIK K.MOHAMMED ALI
SMT.JESSY GEORGE
SRI.K.V.SASIDHARAN
SMT.P.K.JAYASREETHANKACHI
SMT.SAIRA SOURAJ P.
THIS CRIMINAL MISC. CASE HAVING BBEN FINALLY HEARD ON
11.04.2024, THE COURT ON 12.04.2024 PASSED THE FOLLOWING:
Crl.M.C. No.992 /19 -:3:-
"C.R."
BECHU KURIAN THOMAS, J.
--------------------------------
Crl.M.C. No.992 of 2019
---------------------------------
Dated this the 12th day of April, 2024
ORDER
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 Amendment Act of 2013.
8. Slavery, as such, is not defined in the IPC. Therefore, the
definitions of the terms 'slavery' and 'slave' in the various dictionaries
can give an idea as to how the term has to be understood. Sri.
P.Ramanatha Aiyer, in his Advanced Law Lexicon, 4th Edition, has
defined the term 'Slave' as one over whose life, liberty and property
another has unlimited control. It is also explained that every limitation
placed by law upon absolute control modifies and, to that extent,
changes the condition of the slave. Slavery is also defined as
bondage, involuntary servitude, the state of entire subjection of one
person to the will of another.
9. Instead of extracting the definitions of the above referred two
terms from different dictionaries, reference to the decision in
Dhanurjaya Putel and Another v. State of Orissa (2002 SCC
Online Ori 225), relied upon by the learned Public Prosecutor, alone
may be sufficient in the present context. In the said decision, after
referring to the definitions of the terms 'slave' and 'slavery' in various
dictionaries, it was observed by the Orissa High Court that "It
appears from all the aforesaid meanings attributed to the term 'slave'
and 'slavery' that deprivation of the freedom of movement and right
of expression with respect to person or property can be connoted as
the meaning to the term 'slave' or 'slavery'. The said Court went on
to hold that restraining freedom of expressing a grievance against
exploitation and meagre payment satisfies the requirement of the
term 'slave' in the context of the then prevailing law to make out a
prima facie case of slavery under section 370 IPC.
10. This Court is in complete agreement with the observations
in the above judgment. This Court also finds force in the submission
of the learned Public Prosecutor that section 370 IPC, as it stood on
the date of commission of the offence, can be made out from the
evidence of the prosecution witnesses requiring an alteration of
charge.
11. However, on deeper scrutiny, it is noticed that the power
under section 216 Cr.P.C to alter the charge exists only with the court
and cannot be based upon an application by any of the parties. In the
decision in P. Kartikalakshmi v. Sri Ganesh and Another (2017) 3
SCC 347, the Supreme Court observed as follows:
"It is now well settled that the power vested in the Court is
exclusive to the Court and there is no right in any party to
seek for such addition or alteration by filing any application
as a matter of right. It may be that if there was an omission
in the framing of the charge and if it comes to the
knowledge of the Court trying the offence, the power is
always vested in the Court, as provided under Section 216
Cr.P.C to either alter or add the charge and that such power
is available with the Court at any time before the judgment
is pronounced. It is an enabling provision for the court to
exercise its power under certain contingencies which comes
to its notice or brought to its notice. In such a situation, if it
comes to the knowledge of the Court that a necessity has
arisen for the charge to be altered or added, it may do so on
its own and no order need to be passed for that purpose.
After such alteration or addition, when the final decision is
rendered, it will be open for the parties to work out their
remedies in accordance with law."
12. Thus, the request for the addition of the charge under
section 370 IPC, as it stood prior to 2013, cannot be made at the
instance of the prosecution. An addition of charge has to be done by
the Court based upon its own satisfaction and not at the behest of
any of the parties to the trial.
13. In view of the aforementioned binding decision, the
impugned order does not merit any interference, not due to the
reasons mentioned in the said order, but due to the non-
maintainability of an application by the prosecution to add or alter the
charge. Notwithstanding the refusal of this Court to interfere with the
impugned order, the trial court will be at liberty to independently
consider the alteration or addition of charge under any provision of
law if it is so satisfied, untrammelled by any remarks in this order.
With the above observations, this criminal miscellaneous case
is dismissed.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
APPENDIX
PETITIONER ANNEXURES
ANNEXURE A TRUE COPY OF THE PETITION FILED AS
CRL.M.P.NO.11/2019 IN S.C.NO.633/2014
UNDER SECTION 216 OF THE CODE OF
CRIMINAL PROCEDURE.
ANNEXURE B TRUE COPY OF THE ORDER DATED 15.1.2019
IN CRL.MP.NO.11/2019 IN S.C.NO.633/2014
IN THE COURT OF ADDITIONAL DISTRICT AND
SESSIONS JUDGE, ERNAKULAM.
