Legally Bharat

Delhi High Court

X vs State on 4 September, 2024

Author: Amit Sharma

Bench: Amit Sharma

                      $~
                      *       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                             Reserved on : 2nd August, 2024
                                                            Pronounced on: 4th September, 2024

                      +       CRL.REV.P. 882/2019

                              'X'                                                   .....Petitioner
                                                 Through:    Mr. Robin Raju, Advocate.
                                                 versus
                              STATE AND OTHERS                                       .....Respondents
                                           Through:          Mr. Hemant Mehla, APP for the State.
                                                             Mr. Rajiv Mohan, Mr. Rakesh Tiwari and
                                                             Mr. Sachit Sharma, Advocates for R-2 to
                                                             4.
                                                             Mr. Harsh Prabhakar, Mr. Dhruv
                                                             Chaudhry, Mr. Anjana Prabhakar, Mr.
                                                             Anirudh Tanwar, Mr. Adeeb Ahmad and
                                                             Ms. Eshita Pallavi, Advocates for R-5.

                              CORAM:
                              HON'BLE MR. JUSTICE AMIT SHARMA
                                                 JUDGMENT

AMIT SHARMA, J.

1. The present revision petition under Section 397 read with Section 399 Code
of Criminal Procedure, 1973 (‘Cr.P.C’) challenges the order dated 02.05.2019,
passed by the learned Additional Sessions Judge, (POCSO Act) -05, Central, Tis
Hazari Courts, Delhi in case FIR No. 273/2018, under Sections 354/376/377 of
the Indian Penal Code, 1860 (‘IPC’) and Sections 6/21 of the Protection of

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Children from Sexual Offences Act, 2012 (‘POCSO
Act’) and Sections 75/79 of the Juvenile Justice (Care and Protection of Children)
Act, 2015 (‘JJ Act’) registered at P.S. Karol Bagh.

2. Vide the impugned order, the learned ASJ, dismissed the application under
Section 216 of the Cr.P.C. preferred by the present petitioner seeking
addition/alteration of charge with respect to respondents no. 2 to 5, namely, Kapil
Bhatia, Jugal Kishore Bhatia, Kanta Bhatia and Dharna Bhatia respectively. The
said application under Section 216 of the Cr.P.C. sought addition of charges under
Sections 370/377 of the IPC, Section 3(1)(h)(w) of the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act, 1989 (‘SC/ST Act’) and Section
16 of the Bonded Labour System (Abolition) Act, 1976 (‘BLA’). During the
course of the arguments before the Learned Trial Court, the submissions were
made only with respect to Section 370 of the IPC and Section 16 of the BLA.

3. The relevant facts necessary for adjudication of the present petition are as
under:

i. On 12.06.2018, upon an information received, a raid was conducted at the
house of respondents no. 2 to 5, from where the present petitioner was
rescued and her statement was recorded.

ii. The aforesaid FIR was registered on the statement of the petitioner,
wherein she alleged that she was working in the house of respondent no. 2
for the last 3 years and she was not permitted to leave the house and not
given any money for work. She further alleged that respondent no. 2/Mr.
Kapil Bhatia has been sexually exploiting her every day in the manner as
described in the complaint. It was also alleged that respondent no. 2 was

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also sexually exploiting another girl namely ‘A’, who was also working in
that house. She further alleged despite several requests made by her, she
was neither allowed to return to her house nor permitted to leave from there.
She further alleged that she was made to work from 06:00 AM to 11:00 PM
and was made to sleep on the floor and given stale food to eat. She has also
alleged that she informed the wife of respondent no. 2, i.e., respondent no.
5 about the sexual exploitation, however, she did not believe her.

iii. She further alleged that all the family members of respondent no. 2, Kapil
Bhatia including respondents no. 3 and 4 were aware about she being
sexually exploited, however, none took any action. She further alleged that
she was brought to the house of respondent no. 2 by one Fagu from her
native village in Jharkhand, and that respondent no. 2 did not permit her to
even contact Fagu.

iv. After registration of the FIR and during course of investigation, the
petitioner’s/complainant’s statement under Section 164 of the Cr.P.C. was
recorded and chargesheet was filed.

v. Vide order dated 18.12.2018, the Learned ASJ after hearing the arguments
of both the sides, proceeded to frame the charges against the respondents
in the following manner:

a. Against respondent no. 2: Sections 354/354A/354B/344/376(2)(n)
of the IPC, Sections 6/12 of the POCSO Act and Sections 75/79 of
the JJ Act.

b. Against respondents no. 3 to 5: Section 21 of the POCSO Act and
Sections 75/79 of the JJ Act.

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vi. The Learned counsel for the petitioner before the Learned Trial Court filed
written submissions wherein it was urged that provisions of Section 3 of
the SC/ST Act, Section 370 of the IPC and Section 6 of the BLA should
also be framed against respondents no. 2 to 5.

vii. After framing of the aforesaid charges, the Learned Trial Court listed the
matter for prosecution evidence. Examination-in-chief of the petitioner
started on 15.01.2019. During the aforesaid examination, the present
application under Section 216 of the Cr.P.C. was filed on behalf of the
petitioner and was dismissed by the Learned ASJ vide the impugned order.
viii. Hence the present petition.

SUBMISSIONS ON BEHALF OF THE PETITIONER

4. Learned counsel appearing on behalf of the petitioner, at the outset,
submitted that in the present petition, he is only pressing for addition of charge
under Section 370 of the IPC only and is not pressing for charges to be framed
under Section 16 of the BLA. Learned counsel for the petitioner further submitted
that it is a settled law that the charges are framed based on a strong suspicion and
detailed appreciation of evidence is not required at the stage of framing of charges.
Reliance was placed on a judgment passed by the learned Single Bench of this
Court in Shri. Kusam Lata v. State (Govt. of NCT Delhi), 2022 SCC OnLine
Del 1100.

5. Learned counsel for the petitioner submitted that Section 370 of the IPC is
attracted in the present case as she was lured by the respondents. Reliance was
placed on the judgment of the Hon’ble Supreme Court in Sartaj Khan v. State of
Uttarakhand, 2022 SCC OnLine SC 360.

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6. It is submitted that the petitioner was a native of Jharkhand and respondents
no. 2 to 5 hired her knowing that she could be exploited as she had no roots in
Delhi and had a poor financial background. It is urged that the respondents no. 2
to 5 had the requisite mens rea as they hired a domestic worker from outside Delhi
and if only domestic service was required, they could have hired anybody from
Delhi itself. It is further submitted that despite filing detailed written submissions
before the Learned Trial Court, elucidating grounds to add Section 370 of the IPC,
the learned Trial Court did not consider the same and vide the aforesaid order dated
18.12.2018, did not frame charge under Section 370 of the IPC.

7. Learned counsel for the petitioner also placed reliance on the following
judgments:

I. Amit v. The State (Govt. of NCT of Delhi), passed by the learned Single
Judge of this Court in Criminal Revision Petition No. 513 of 2019 on
13.05.2019.

II. Mahender Singh v. State of NCT of Delhi & Ors., (2020) SCC Online
Del 1760
III.
X v. Government of NCT of Delhi, (2022) SCC Online Del 3291
IV. Ajay v. State of Haryana, (2024) SCC Online P&H 561
V. Dr. Nallapareddy Sridhar Reddy v State of Andhra Pradesh and Ors.,
(2020 )12 SCC 467

Reliance was placed on the above judgments to submit that an application
under Section 216 of the Cr.P.C. can be filed at the instance of the survivor and
that the decision thereon would be revisable under Section 397 of the Cr.PC.

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                       SUBMISSIONS ON BEHALF OF RESPONDENTS NO. 2 TO 4

8. Learned counsel appearing on behalf of respondents no. 2 to 4 drew
attention of this Court to the allegations made in the present FIR, wherein it has
been stated by the petitioner that she had come to Delhi with one Fagu, who hailed
from her village. Attention of this Court was further drawn to the order dated
18.12.2018 to demonstrate that the Learned Trial Court have noted the
submissions made on behalf of the petitioner and thereafter proceeded to frame
charges as pointed out herein before. It is submitted that aforesaid order on charge
was never challenged by the petitioner in any forum. Attention of this Court was
further drawn to portions of examination in chief of the petitioner recorded before
the Learned Trial Court to demonstrate that respondents no. 2 to 5 used to deposit
her salary in the bank account of her father directly and that she was employed by
the said respondents on the recommendation of Fagu.

9. It was further submitted that the application under Section 216 of the
Cr.P.C. moved by the petitioner was on the same grounds which were urged before
the Learned Trial Court at the time of arguments on charge. It is also submitted
that no reliance was placed on the testimony recorded of the petitioner before the
Learned Trial Court seeking addition of charge under Section 370 IPC as no
material had come on record for the same. It is further submitted that the
allegations as contained in the FIR and the material brought on record by way of
chargesheet does not make out a case under Section 370 of the IPC.

SUBMISSIONS ON BEHLAF OF RESPONDENT NO. 5

10. Learned counsel appearing on behalf of respondent no. 5 submits that the
latter is the estranged wife of respondent no. 2. It is submitted that on account of

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an estranged relationship with respondents no. 2 to 4, the present respondent no. 5
was living with her two daughters on the first floor of the house while the other
respondents were living on the ground floor. Allegations with respect to the
present respondent by the petitioner was that despite being informed she was being
sexually exploited at the hands of respondent no. 2, the said respondent did not
believe her and took no steps to help the petitioner.

11. It is submitted that the application under Section 216 of the Cr.P.C. filed on
behalf of the petitioner was unsigned, even though, admittedly, she was a major at
that time. It is further submitted that even the affidavit in support of the present
petition is defective as recitals reflect that the same were not explained to the
petitioner in vernacular and is an affidavit which is normally filed with a Public
Interest Litigation.

12. It was further submitted that the deposition of the petitioner before the
Learned Trial Court does not make out a case under Section 370 of the IPC. The
relevant portions of the deposition of the petitioner/complainant before the learned
Trial Court have been placed on record and are reproduced herein below:

“…Q11. Whether Fagu used to come to collect money from the
accused persons?

Ans. No Accused J.K.Bhatia and Kapil Bhatia used to deposit my
salary in the bank account of my father directly…” [Examination in
Chief of Victim/Petitioner dated 15.01.2019] [PDF Pg. 272]
…Q3. I put it to you that you were employed by Kapil Bhatia &
J.K.Bhatia on the recommendation of Fagu.

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                               Ans. It is correct [PDF Pg. 307]

Q4. I put to you that accused Dharna Bhatia did not give salary to you
at any point of time.

Ans. It is correct. [PDF Pg. 307]
Q5. I put to you that accused Dharna Bhatia did not give your salary
to Fagu and your family members at any point of time.
Ans. It is correct. Vol. J.K.Bhatia and Kapil Bhatia used to deposit my
salary in the bank account of my family…” [Cross Examination of
Victim/Petitioner dated 04.06.2019] [PDF Pg. 307]
…Q16. Whether you were carrying your Aadhar Card when you first
time left your native village with Smt. Anju?

Ans. At that time, I was not having my Aadhar Card, but when I went
to my native village from Haldwani for four months, I got prepared
my Aadhar Card at Jharkhand. When I came to Delhi, I was carrying
that Aadhar Card with me. [PDF Pg. 251]
Q17. What was the purpose of carrying the Aadhar Card?

Ans. The purpose was to show my date of birth to the prospective
employer and to let him know my parentage and my address…” [Cross
examination of the Victim/Petitioner dated 16.02.2019] [PDF Pg.
251]
Q8. Whether you used to go out with accused Kanta Bhatia for their
work or for your own work also?

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Ans. I used to go out for their work as well as for making purchases
for myself of articles like shampoo, soap etc…”[Examination in Chief
of the Victim/Petitioner dated 15.01.2019] [PDF Pg. 251]
“…Court Question : Whether you were having mobile phone with
you?

Ans. Yes. I was having a mobile phone. Its number is 8826519817.
[PDF Pg. 252 ]
Court Question : From where did you get the mobile phone?
Ans. I had requested the tenants who used to live on the second floor
of house of accused persons and they had arranged a mobile phone
for me in March, 2018…” [Examination in Chief of the
Victim/Petitioner dated 15.01.2019] [PDF Pg. 252 ]
“…Q.14. I put to you as to whether after coming to Delhi, you were in
touch with Sh. Laxman?

Ans. Yes. I was having his mobile number and was in regular touch
with him…” [Cross Examination of Victim/ Petitioner dated
16.02.2019] [PDF Pg. 252]”

13. It is submitted that in the case of Shri. Kusum Lata (supra), relied upon
by the petitioner, the facts are totally distinguishable. It is submitted that in the
said case, there was electronic evidence to demonstrate selling and buying of
children and additionally, during investigation, it was revealed that the petitioner
therein had sold a male child earlier who was subsequently recovered. In the said
case, it is submitted that petitioner was running a clinic for facilitating adoption

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and therefore the Hon’ble Court observed with regard to existence of strong
suspicion of a planned syndicate for buying and selling of children. Similarly, in
Sartaj Khan (supra), the evidence was with respect to the victim being lured by
promising her to take her to a destination for shopping and that the evidence
therein established that the victim was lured into coming to India.
In
Nallapareddy Sridhar Reddy (supra), there were two chargesheets were filed
and the learned Trial Court while framing charge erred in not noticing the 2nd
chargesheet for the offences punishable under Sections 406/420 IPC.
ANALYSIS AND FINDINGS

14. Section 216 of the Cr.P.C. reads as under:

“Section 216 – Court may alter charge

1. Any Court may alter or add to any charge at any time before judgment
is pronounced.

2. Every such alteration or addition shall be read and explained to the
accused.

3. If the alteration or addition to a charge is such that proceeding
immediately with the trial is not likely, in the opinion of the Court to
prejudice the accused in his defence or the prosecutor in the conduct of
the case the Court may, in its discretion, after such alteration or addition
has been made, proceed with the trial as if the altered or added charge
had been the original charge.

4. If the alteration or addition is such that proceeding immediately with
the trial is likely, in the opinion of the Court to prejudice the accused or
the prosecutor as aforesaid, the Court may either direct a new trial or
adjourn the trial for such period as may be necessary.

5. If the offence stated in the altered or added charge is one for the
prosecution of which previous sanction is necessary, the case shall not
be proceeded with until such sanction is obtained, unless sanction had
been already obtained for a prosecution on the same facts as those on
which the altered or added charge is founded.”

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15. While interpreting the aforesaid provision, the Hon’ble Supreme Court in
Dr. Nallapareddy Sridhar Reddy (Supra), observed and held as under:

16. Section 216 appears in Chapter XVII CrPC. Under the provisions of
Section 216, the court is authorised to alter or add to the charge at any
time before the judgment is pronounced. Whenever such an alteration
or addition is made, it is to be read out and explained to the accused.

The phrase “add to any charge” in sub-section (1) includes addition
of a new charge. The provision enables the alteration or addition of
a charge based on materials brought on record during the course of
trial. Section 216 provides that the addition or alteration has to be
done “at any time before judgment is pronounced”. Sub-section (3)
provides that if the alteration or addition to a charge does not cause
prejudice to the accused in his defence, or the prosecutor in the conduct
of the case, the court may proceed with the trial as if the additional or
alternative charge is the original charge. Sub-section (4) contemplates a
situation where the addition or alteration of charge will prejudice the
accused and empowers the court to either direct a new trial or adjourn
the trial for such period as may be necessary to mitigate the prejudice
likely to be caused to the accused. Section 217 CrPC deals with recalling
of witnesses when the charge is altered or added by the court after
commencement of the trial.

17. The decision of a two-Judge Bench of this Court in P.
Kartikalakshmi v. Sri Ganesh [P. Kartikalakshmi v. Sri Ganesh, (2017)
3 SCC 347 : (2017) 2 SCC (Cri) 84] , dealt with a case where during the
course of a trial for an offence under Section 376 IPC, an application
under Section 216 was filed to frame an additional charge for an offence
under Section 417 IPC. F.M. Ibrahim Kalifulla, J. while dealing with the
power of the court to alter or add any charge, held : (SCC p. 350, para

6)
“6. … Section 216 CrPC empowers the court to alter or add any charge
at any time before the judgment is pronounced. 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 CrPC to either alter or add the charge and that such

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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.”

(emphasis supplied)

18. In Anant Prakash Sinha v. State of Haryana [Anant Prakash
Sinha v. State of Haryana, (2016) 6 SCC 105 : (2016) 2 SCC (Cri) 525]
, a two-Judge Bench of this Court dealt with a situation where for
commission of offences under Sections 498-A and 323 IPC, an
application was filed for framing an additional charge under Section 406
IPC against the husband and the mother-in-law. After referring to
various decisions of this Court that dealt with the power of the court to
alter a charge, Dipak Misra, J. (as the learned Chief Justice then was),
held : (SCC p. 116, paras 18-19)
“18. … the court can change or alter the charge if there is defect or
something is left out. The test is, it must be founded on the material
available on record. It can be on the basis of the complaint or the FIR
or accompanying documents or the material brought on record during
the course of trial. It can also be done at any time before pronouncement
of judgment. It is not necessary to advert to each and every
circumstance. Suffice it to say, if the court has not framed a charge
despite the material on record, it has the jurisdiction to add a charge.
Similarly, it has the authority to alter the charge. The principle that has
to be kept in mind is that the charge so framed by the Magistrate is in
accord with the materials produced before him or if subsequent
evidence comes on record. It is not to be understood that unless evidence
has been let in, charges already framed cannot be altered, for that is not
the purport of Section 216 CrPC.

19. In addition to what we have stated hereinabove, another aspect also
has to be kept in mind. It is obligatory on the part of the court to see that
no prejudice is caused to the accused and he is allowed to have a fair
trial. There are in-built safeguards in Section 216 CrPC. It is the duty of
the trial court to bear in mind that no prejudice is caused to the accused
as that has the potentiality to affect a fair trial.”

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                                                                                      (emphasis supplied)

19. In CBI v. Karimullah Osan Khan [CBI v. Karimullah Osan Khan,
(2014) 11 SCC 538 : (2014) 3 SCC (Cri) 437] , this Court dealt with a
case where an application was filed under Section 216 CrPC during the
course of trial for addition of charges against the appellant under various
provisions of IPC, the Explosives Act, 1884 and the Terrorist and
Disruptive Activities (Prevention) Act, 1987. K.S.P. Radhakrishnan, J.
speaking for the Court, held thus : (SCC p. 546, paras 17-18)
“17. Section 216 CrPC gives considerable power to the trial court, that
is, even after the completion of evidence, arguments heard and the
judgment reserved, it can alter and add to any charge, subject to the
conditions mentioned therein. The expressions “at any time” and before
the “judgment is pronounced” would indicate that the power is very
wide and can be exercised, in appropriate cases, in the interest of
justice, but at the same time, the courts should also see that its orders
would not cause any prejudice to the accused.

18. Section 216 CrPC confers jurisdiction on all courts, including the
Designated Courts, to alter or add to any charge framed earlier, at any
time before the judgment is pronounced and sub-sections (2) to (5)
prescribe the procedure which has to be followed after that addition or
alteration. Needless to say, the courts can exercise the power of addition
or modification of charges under Section 216 CrPC, only when there
exists some material before the court, which has some connection or
link with the charges sought to be amended, added or modified. In other
words, alteration or addition of a charge must be for an offence made
out by the evidence recorded during the course of trial before the court.”

(emphasis supplied)

20. In Jasvinder Saini v. State (NCT of Delhi) [Jasvinder Saini v. State
(NCT of Delhi), (2013) 7 SCC 256 : (2013) 3 SCC (Cri) 295] , this Court
dealt with the question whether the trial court was justified in adding a
charge under Section 302 IPC against the accused persons who were
charged under Section 304-B IPC. T.S. Thakur, J. (as he then was)
speaking for the Court, held thus : (SCC pp. 260-61, para 11)
“11. A plain reading of the above would show that the court’s power to
alter or add any charge is unrestrained provided such addition and/or
alteration is made before the judgment is pronounced. Sub-sections (2)
to (5) of Section 216 deal with the procedure to be followed once the
court decides to alter or add any charge. Section 217 of the Code deals

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with the recall of witnesses when the charge is altered or added by the
court after commencement of the trial. There can, in the light of the
above, be no doubt about the competence of the court to add or alter a
charge at any time before the judgment. The circumstances in which
such addition or alteration may be made are not, however, stipulated in
Section 216. It is all the same trite that the question of any such addition
or alternation would generally arise either because the court finds the
charge already framed to be defective for any reason or because such
addition is considered necessary after the commencement of the trial
having regard to the evidence that may come before the court.”

(emphasis supplied)

21. From the above line of precedents, it is clear that Section 216
provides the court an exclusive and wide-ranging power to change or
alter any charge. The use of the words “at any time before judgment
is pronounced” in sub-section (1) empowers the court to exercise its
powers of altering or adding charges even after the completion of
evidence, arguments and reserving of the judgment. The alteration
or addition of a charge may be done if in the opinion of the court
there was an omission in the framing of charge or if upon prima
facie examination of the material brought on record, it leads the
court to form a presumptive opinion as to the existence of the factual
ingredients constituting the alleged offence. The test to be adopted
by the court while deciding upon an addition or alteration of a
charge is that the material brought on record needs to have a direct
link or nexus with the ingredients of the alleged offence. Addition of
a charge merely commences the trial for the additional charges,
whereupon, based on the evidence, it is to be determined whether the
accused may be convicted for the additional charges. The court must
exercise its powers under Section 216 judiciously and ensure that no
prejudice is caused to the accused and that he is allowed to have a fair
trial. The only constraint on the court’s power is the prejudice likely to
be caused to the accused by the addition or alteration of charges. Sub-
section (4) accordingly prescribes the approach to be adopted by the
courts where prejudice may be caused.

                                                                                 (emphasis supplied)




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16. In view of the aforesaid legal position, it is clear that the provisions of
Section 216 of the Cr.P.C. can be exercised at any stage before the pronouncement
of judgment if, in the opinion of the Court, the material on record has a direct link
or nexus with the ingredients of the offence. A learned Single Judge of this Court
in X v. State (Govt. of NCT of Delhi) and Ors, 2022 SCC OnLine Del 3291,
has observed and held as under:

“14. A careful perusal of Section 216CrPC and the scheme of Chapter
XVII CrPC does not indicate that the trial court is required to pronounce
its judgment on charges at multiple stages. Neither Chapter XVIII nor
Chapter XIX CrPC envisages multiple orders on charges. Once charges
are framed, the trial court is to proceed with the trial for recording
evidence as per law and to pass judgment of acquittal or conviction. The
mandate of 216 CrPC is not to scuttle the process of trial at intermittent
stages but to enable the trial court to see whether it is required to alter
or add any charge. This exercise of altering or adding may not be
required in each trial and will depend upon the facts of individual trial
whether such an exercise is warranted or not. The power under Section
216 CrPC is exercisable at any time before the judgment is pronounced.
For exercise of such power, no application, oral or written, is necessary,
however, there is no bar if any oral or written request is made but the
same is not necessarily to be dealt with immediately, else the accused or
the complainant at every stage may require the trial court to pass orders.
The same would completely frustrate the purpose of speedy trial and the
trial court would be compelled in deciding the trial in piecemeal.”

17. In the present case, as noted hereinabove, the order on charge was passed
on 18.12.2018. The Trial had commenced, and the petitioner had been examined-
in-chief and partly cross-examined as PW-1, when the application under Section
216 of the Cr.P.C. was filed before the learned Trial Court. The Learned Trial
Court taking note of the same proceeded to dispose of the said application by
observing in the following manner:

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“12. In the present case, the charges were framed by my Ld.
Predecessor vide order dated 18.12.2018 and a detailed order in this
regard has been passed. Ld. Predecessor has already taken notice of all
the allegations against the accused persons and, thereafter, framed the
charges and the matter was fixed for examination of victim who has
been examined in chief and partly cross-examined as PW 1.

13. Ld. Counsel for applicant has not challenged the aforesaid order
dated 18.12.2018 and, therefore, the present application at this belated
stage, is devoid of any merit. Furthermore, the addition of the aforesaid
Sections into the charges against the accused persons pressed for by Ld.
Counsel for applicant are not made out. For attracting Section 370 of
IPC which pertains to trafficking of a person, it is incumbent upon the
prosecution that the person who used a person for the purpose of
exploitation and (a) recruits (b) transports (c) harbours (d) transfers or

(e) receives, a person or persons, by using threats, used force or
coercion, abduction, fraud or deception by inducement and none of the
ingredients is present in the present case.

14. The contention of the applicant that Section 16 of BLA is applicable,
is without any merit as in the present case, it is not the case of the
prosecution that there is relationship between victim and the present
accused persons of debtor and creditor as defined U/s 2(e) of BLA while
defining of BLA.

15. Reliance placed by Ld. Counsel for applicant on the Judgment of
Bandhua Mukti Morcha Vs. Union of India (UOI) and Ors. (1984)
3 SCC 161 is misplaced as the said Judgment has been given in the facts
and circumstances obtaining therein for the purpose of release and
rehabilitation of the labourers inducted in different employments for
number of years. In the said circumstances. Hon’ble Supreme Court of
India has held that there was a presumption in favour of the deprived
labourers for the purpose of release and rehabilitation that they were
bonded labourers.
In the present
case, the criminal liability on the accused cannot be fastened on the basis
of aforesaid Judgment of Bandhua Mukti Morcha (supra) as in the said
case, there was no criminal accusations U/s 16 of the BLA against the
employers. For attracting the same, there should be a prima-facie case
against the accused persons which is absent in the present case.
While
holding so, I am fortified of the Judgment in ILR 2004 KAR 4606

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Sannasomannara Somashekarappa and Others Vs. Gorappa
Rudraswamy and Others, wherein it has been held that:

“Para 9 – In the instant case, as noted the petitioners are said to
have offered to the parents of the children advance of Rs. 1,000/-,
Rs. 2,000/-, Rs. 1,650/- and the like and asked them to send their
children to graze cattle. It is the argument of the learned Counsel
for the petitioners that the amount so offered was only in the form
of wages. As required under Section 2(g) of the Act, already
there must be debt or liability incurred by the parents or the
persons who have been directed to work as bonded labour and
further submitted that it is neither by the ascendants of the
boys who had been released. There was no such creditor
debtor relationship between the parents of wages to graze their
cattle in advance. It was only an offering of wages to graze their
cattle in advance. Of course, engaging of child labour would be an
offence elsewhere, but in my opinion the very act of the petitioners
in engaging children for grazing cattle by providing food clothing
etc. would not amount to exploitation of bonded labour and does
not constitute bonded labour system. Rather the parents of the boys
who had been freed were not being compelled or forced to send
their children”

17. In view of the aforesaid facts, circumstances and settled law, the
application of the complainant is devoid of any merits, therefore, the
same is dismissed.”

18. It is pertinent to note that the application filed on behalf of the petitioner
under Section 216 of the Cr.P.C. did not rely upon any material that had come on
record after framing of charge qua the respondents no. 2 to 5. In the said
application, which has been placed on record, it was stated that the Investigating
Officer had failed to register the FIR under the relevant sections and also the
chargesheet wasn’t filed under the appropriate sections. It is further stated in the
said application that the learned Trial Court, while passing the order dated
18.12.2018, failed to consider the submission made by the complainant and the

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material placed on record. Thus, the material relied upon by the petitioner in her
application under Section 216 of the Cr.P.C. were the statement of the petitioner
resulting in the registration of FIR as well as her statement recorded under Section
164 of the Cr.P.C. Reliance was also placed on a Release Certificate issued under
Section 12 of the BLA by Sub-Division Magistrate, Karol Bagh dated 06.08.2018.

19. In the aforesaid factual context, the proper course for the petitioner was to
challenge the order on charge dated 18.12.2018 on the ground that the submission
with respect to Section 370 of the IPC was not considered. Be that as it may, since
the present petition has been heard at length on merits, the Court considers it
appropriate to decide the issue of addition of charge under Section 370 of the IPC.

20. Section 370 of the IPC, reads as under:

“Section 370 IPC – Trafficking of persons

370. (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, or
Secondly.– using force, or any other form of coercion, or
Thirdly.– by abduction, or
Fourthly.– by practising fraud, or deception, or
Fifthly.– by abuse of power, or
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, prostitution or
other forms of sexual exploitation, forced labour or services, slavery or
practices similar to slavery, servitude, or the forced removal of organs.
Explanation 2.– The consent of the victim is immaterial in a determination
of the offence of trafficking.

(2) Whoever commits the offence of trafficking shall be punished with
rigorous imprisonment for a term which shall not be less than seven years,
but which may extend to ten years, and shall also be liable to fine.

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(3) Where the offence involves the trafficking of more than one person, it
shall be punishable with rigorous imprisonment for a term which shall not be
less than ten years but which may extend to imprisonment for life, and shall
also be liable to fine.

(4) Where the offence involves the trafficking of a minor, it shall be
punishable with rigorous imprisonment for a term which shall not be less than
ten years but which may extend to imprisonment for life.
(5) Where the offence involves the trafficking of more than one minor at the
same time, it shall be punishable with rigorous imprisonment for a term which
shall not be less than fourteen years but which may extend to imprisonment
for life.

(6) When a public servant including police officer is involved in the
trafficking of a minor then such public servant shall be punished with
imprisonment for life, which shall mean the remainder of that person’s natural
life.

(7) If a person is convicted of the offence of trafficking of minors, on more
than one occasion, then such person shall be punished with imprisonment for
life, which shall mean imprisonment for the remainder of that person’s natural
life.”

21. The aforesaid offence has been substituted in place of erstwhile Section 370
of the IPC by Section 8 of Criminal Law Amendment Act, 2013 (w.e.f.
02.04.2013). Old Section 370 of the IPC was as under:

“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 of either description for a term which
may extend to seven years, and shall also be liable to fine.”

Thus, the heading of erstwhile Section 370 of the IPC “Buying or disposing
of any person as a slave’ had been substituted by “Trafficking of person.”

22. The present new Section 370 of the IPC essentially deals with the heinous
offence of trafficking of a person. It is pertinent to note that the aforesaid
substitution of Section 370 of the IPC was made after the recommendation made

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in the report of the Committee of amendment of Criminal Law by Justice J.S.
Verma dated 23.01.2013. The following extract from the said recommendation
relevant for the present case is as under:

“9.In any event, we recommend that the definition of ‘trafficking’ contained
in the Palermo Protocol ought to be adopted by the Legislatures as a definition
of the offence in the Indian context, since the lack of definition of trafficking
and the ineffective law enforcement in relation to trafficking and in particular
the non-application of the provisions contained in the Indian Penal Code in
relation to the same have actually made trafficking a huge industry which has
not been brought to any critical gaze of law enforcement for reasons already
cited. We believe that in order to protect the dignity of women in particular,
it is necessary that the definition of trafficking as contained above must be
incorporated as an independent definition in the Penal Code as a separate
offence.”

23. A plain reading of Section 370 of the IPC makes it clear that for the purpose
of offences of trafficking, the person/persons who for the “purposes of
exploitation” either (i) recruits, (ii) transports, (iii) harbours, (iv) transfers & (v)
receives a person or persons (a) by threats, or (b) using force or any other form of
coercison, or (c) by abduction, or (d) practicing fraud, or deception, or (e) by abuse
of power, or (f) 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. For the purpose of the present Section, the term exploitation
shall include any act of physical exploitation or any form of physical exploitation,
slavery, practices similar to slavery, servitude or the forced removal of organs.

24. The core or essential ingredient would be “for the purpose of exploitation”.
Thus, to bring the case of respondents no. 2 to 5 under Section 370 of the IPC, it

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has to be shown that they “for the purpose of exploitation” by using the aforesaid
methods, recruited or transported or harboured or received the petitioner. To
charge respondents no. 2 to 5, for the offence punishable under Section 370 IPC it
has to be prima facie shown that they had employed the petitioner for the said
“purposes of exploitation”. As pointed out hereinabove, the petitioner herself
stated in the FIR that she was brought by one Fagu from her village to the house
of the said respondents. It has further come on record that the salary was being
transferred to her father’s account. Similarly, the fact that Aadhar Card was made
showing her to be of the eligible age for obtaining employment had also been
prepared, and has come on record. The aforesaid Fagu is also not an accused in
the present FIR. The Hon’ble Supreme Court in State of Gujarat v. Sandip
Omprakash Gupta, 2022 SCC Online SC 1727, had observed and held as under:

53. The rule as stated by Mahajan C.J. in Tolaram Relumal v. State of
Bombay reported in AIR 1954 SC 496, is that “if two possible and reasonable
constructions can be put upon a penal provision, the court must lean towards
that construction which exempts the subject from penalty rather than the one
which imposes a penalty.
It is not competent to the court to stretch the
meaning of an expression used by the legislature in order to carry out the
intention of the legislature….” In State of Jharkhand v. Ambay
Cements reported in (2005) 1 SCC 368, this Court held that it is a settled rule
of interpretation that where a statute is penal in character, it must be strictly
construed and followed. The basic rule of strict construction of a penal statute
is that a person cannot be penalised without a clear letter of the law.

Presumptions or assumptions have no role in the interpretation of penal
statutes. They are to be construed strictly in accordance with the provisions
of law. Nothing can be implied. In such cases, the courts are not so much
concerned with what might possibly have been intended. Instead, they are
concerned with what has actually been said.

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25. From the above facts and circumstances, it cannot be said that Respondents
no. 2 to 5 had employed the petitioner for the “purpose of exploitation”, the alleged
sexual exploitation of the petitioner by respondent no. 2 is an act after she was
employed at the house of the said respondents. The contention of learned counsel
for the petitioner that the said mens rea ought to be deciphered from the fact that
they had hired a worker from outside Delhi because if hiring a worker for domestic
service was the sole intention, then they would have hired anybody from Delhi
itself, is not tenable.

26. A perusal of the records would reflect that there is nothing on record to bring
the case of respondents no. 2 to 5 for framing charge under Section 370 of the IPC
at this stage.

27. In view of the above, the present petition is dismissed and disposed of
accordingly.

28. Pending application(s), if any, also stands disposed of.

29. Needless to state, nothing mentioned hereinabove is an opinion on the
merits of the case and any observations made are only for the purpose of the
present petition.

30. Judgment be uploaded on the website of this Court forthwith.





                                                                                         AMIT SHARMA
                                                                                                JUDGE
                      SEPTEMBER 04, 2024/bsr



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