Introduction:

The Kerala High Court has held that criminal proceedings under the Immoral Traffic (Prevention) Act, 1956 cannot be brought to an end merely because women allegedly subjected to sexual exploitation later state that they have no grievance against the accused. Justice Jobin Sebastian observed that offences under the special legislation are not private disputes that can ordinarily be terminated simply because the persons allegedly affected by the conduct have subsequently changed their position.

The observation came while considering a petition filed by accused nos. 1 and 3 to 7 seeking quashing of criminal proceedings arising from allegations concerning the operation of a brothel at an Ayurvedic spa. The case involved offences under Section 143 read with Section 3(5) of the Bharatiya Nyaya Sanhita, 2023 and Sections 4, 5, 6 and 7 of the Immoral Traffic (Prevention) Act, 1956.

The prosecution case was that accused nos. 1 to 3 had recruited and harboured certain women at an Ayurvedic spa for the purpose of engaging them in sexual activities. The prosecution further alleged that accused nos. 4 to 7 assisted the operation by recommending women to the establishment, allegedly with the intention of earning monetary benefits.

According to the prosecution, the police received information regarding the alleged activities being carried out at the spa and conducted a raid. During the raid, accused nos. 4 to 7 were allegedly found engaged in sexual intercourse with four women. The prosecution relied upon this material, along with statements of witnesses and other evidence gathered during investigation, to proceed against the accused.

The petitioners approached the High Court invoking its jurisdiction to seek quashing of the proceedings. Their principal contention was that even if the allegations contained in the First Information Report and final report were accepted, the ingredients of the offences invoked against them were not established.

They argued that the investigation had failed to produce material showing that the women had been recruited, threatened or forced into sexual activity. According to the petitioners, there was also no material demonstrating that the women were receiving payments or other benefits in connection with the alleged activities.

The petitioners further contended that there was no evidence showing that they had assisted in the running of a brothel. One of the accused specifically claimed that he was not present at the scene when the alleged raid took place and submitted that CCTV footage would establish his absence.

Questions were also raised regarding the manner in which the search had been conducted. The petitioners contended that the statutory and procedural requirements relating to the search had not been properly complied with and that the alleged irregularities undermined the prosecution case.

A further ground was based on the subsequent statements of the women who were allegedly subjected to sexual exploitation. The petitioners pointed out that the women had appeared before the Magistrate and stated that they did not support the prosecution case. They allegedly stated that they were not engaged in sex work and were working at the spa in different capacities without knowledge of the alleged activities.

The women had also filed affidavits before the High Court maintaining that they had no grievance against the accused. Relying heavily on these developments, the petitioners argued that the possibility of a successful prosecution had substantially disappeared.

The State opposed the petition. The Senior Public Prosecutor submitted that the investigation had resulted in collection of sufficient material to justify continuation of the criminal proceedings. The prosecution contended that the case was not dependent solely upon the statements of the women allegedly subjected to sexual exploitation.

It was submitted that independent witnesses as well as official witnesses supported the prosecution version. Therefore, the subsequent position taken by the women could not, at the stage of considering a petition for quashing, be treated as determinative of the guilt or innocence of the accused.

After considering the rival submissions, Justice Jobin Sebastian declined to quash the proceedings in their entirety.

The Court held that the mere fact that the women allegedly subjected to sexual exploitation subsequently stated that they had no grievance did not automatically destroy the prosecution case. The Court emphasised that the offences under the Immoral Traffic (Prevention) Act are intended to regulate and prohibit activities considered harmful in the public interest and are not merely disputes between private individuals.

At the same time, the High Court examined the specific offences alleged against each category of accused. While allowing the prosecution to continue against accused nos. 1 and 3 for all offences alleged, the Court found that accused nos. 4 to 7, who were alleged to have been customers of the brothel, could not be proceeded against under every provision invoked by the prosecution.

Relying upon the Division Bench judgment in Noushad v. State of Kerala, the Court held that Sections 5 and 7 of the Immoral Traffic (Prevention) Act could apply to accused nos. 4 to 7, but the allegations did not sustain offences under Sections 4 and 6 against them.

Consequently, the Court quashed the proceedings against accused nos. 4 to 7 under Section 143 and Section 3(5) of the BNS and Sections 4 and 6 of the Immoral Traffic (Prevention) Act, while permitting the prosecution against them under Sections 5 and 7 of the special enactment.

Arguments of the Parties:

The petitioners sought complete quashing of the criminal proceedings on the ground that the materials collected during investigation did not establish the essential ingredients of the offences alleged against them.

Their principal submission was that the FIR and final report did not disclose sufficient material to establish that the women working at the Ayurvedic spa had been recruited or harboured for the purpose of prostitution or sexual exploitation in the manner contemplated under the Immoral Traffic (Prevention) Act.

According to the petitioners, the prosecution had not collected material demonstrating that the women were compelled, threatened or forced to engage in sexual activities. They further contended that there was no evidence showing that the women received any payment or benefit as a consequence of the alleged activities.

The petitioners argued that these deficiencies were fundamental because the prosecution could not rely merely upon the fact that sexual activity was allegedly taking place at the premises. There had to be material connecting the accused to the specific statutory offences invoked against them.

The petitioners also challenged the allegation that they had assisted in the running of a brothel. They submitted that the prosecution had failed to identify concrete acts attributable to the individual accused which could constitute assistance in the management or operation of the alleged establishment.

One of the petitioners specifically disputed his presence at the scene of occurrence. According to him, he was not present at the spa when the police conducted the raid. The petitioner’s case was that CCTV footage available from the premises would establish his absence and consequently undermine the prosecution’s allegation concerning his participation.

The petitioners also questioned the legality of the search and raid. They contended that the procedure prescribed for conducting the search had not been properly followed and that the alleged procedural irregularities affected the reliability of the prosecution case.

A major part of the petitioners’ case, however, rested upon the subsequent statements made by the women allegedly subjected to sexual exploitation.

The petitioners informed the High Court that the women had appeared before the Magistrate and stated that they did not support the prosecution case. They allegedly denied that they were engaged in sex work and maintained that they were working at the spa in different capacities.

According to the petitioners, the women further stated that they had no knowledge of any alleged brothel activity and had no grievance against the accused persons.

The women had also filed affidavits before the High Court supporting their subsequent position. The petitioners argued that once the alleged victims themselves had disownA Division Bench of the Calcutta High Court comprising Justice Amrita Sinha and Justice Biswaroop Chowdhury held that procedural requirements for disclosure of prior job applications should be interpreted liberally, and non-disclosure by a newly appointed employee unaware of such obligations does not bar entitlement to a beneficial welfare scheme (Old Pension Scheme).

Background Facts

The Employee (petitioner) applied for the post of Peon in May 2002. He also applied for the post of Lower Grade Clerk in the year 2005. The written test for the post of Peon was conducted and he was successful. An appointment order was issued in his favour. While discharging duties as Peon, the result of the recruitment process for Lower Grade Clerk was published. He was successful in the same and an appointment order was issued in his favour on 12th March, 2007.

The employee tendered resignation on 14th March 2007, disclosing that he got selected for appointment as Lower Grade Clerk and intended to join the said post. His resignation was accepted. He was relieved from duties with effect from 23rd March 2007. The employee joined the post of Lower Grade Clerk on 27th March 2007. His appointment order clearly mentioned that he would be governed by the New Pension Scheme, 2004.

An Office Memorandum was published by the Government of India. It provided a one-time option to be covered under CCS (Pension) Rules, 1972.

The option was available to Central Government civil employee who were appointed against a post which was advertised for recruitment prior to the date of notification for New Pension Scheme (22/12/2003). Such option was to be exercised by the concerned government servant latest by 31st March, 2023. Therefore, the employee applied for seeking coverage under the old CCS (Pension) Rules, 1972

However, his application was rejected by the authority. The reason was that he resigned from the post of Peon directly without applying for technical resignation. The employee challenged the order of rejection before the Central Administrative Tribunal. However, the Tribunal dismissed his Application. It was held by the Tribunal that the employee failed to intimate the details of his pending application for job in the post of Lower Grade Clerk immediately after joining the post of Peon.

Aggrieved by the same, the Employee filed the writ petition before the Calcutta High Court.

It was submitted by the Employee that the resignation letter clearly disclosed that he got another job and accordingly tendered resignation. It was submitted that he never suppressed his selection in the post of Lower Grade Clerk at the time of submitting his resignation in the post of Peon. It was contended that his resignation was duly accepted by the employer.

Further, the employee relied upon the OM dated 17th August, 2016 which mentioned that resignation is treated as a technical formality where a government servant applied through proper channel for a post in the same or other department and is required to resign from the previous post for administrative reasons.

It was further submitted that he disclosed the reason for resignation at the time of joining the new post, therefore, his resignation should be treated as technical resignation.

On the other hand it was argued by the respondents that the employee should have intimated the details of his prior pending application for the post of Lower Grade Clerk when he joined the post of Peon. The employee failed to disclose such prior application, therefore, he would be governed by the New Pension Scheme and not the old CCS (Pension) Rules, 1972.

It was further submitted that the employee would be bound by all rules and regulations mentioned in his order of appointment. Disclosure of applications for job made prior to joining was obligatory on the part of the employee.

Findings and Observations of the Court

It was observed by the Division Bench that an unemployed youth files several applications simultaneously. Getting a job becomes the primary concern. There is no bar in applying for job in various departments at the same time. One cannot vouch that he will be selected. An unemployed youth accepts the very first job offer where he is selected as the next one is always uncertain.

It was further observed that the employee was lucky enough to be selected in both recruitment processes. At the time of joining as Peon, the employee was never specifically informed that he should have disclosed details of all other applications for job. Further, no document was produced by the respondents to suggest that the appointment order prescribed such requirement.

It was observed that a newly appointed employee is not supposed to know about all orders, circulars, OMs. It there had been such mandatory stipulation, the employer should have brought it to notice. The employee being unaware of such requirements did not disclose.

It was observed by the Bench that if the employee had not been selected for the job of Lower Grade Clerk he would have continued in the post of Peon and in that case, he would have been eligible for the benefit of reverting to the old pension scheme.

It was held by the Division Bench that any Government Order dealing with regular service issues should be widely published. It is an obligation on the employer to bring to the notice of the employee the formalities required to be complied with immediately when he joins service. It was further held that if the appointment order does not mandatorily specify the requirements and the obligations of disclosure, then it has to be taken that the same are directory in nature. It was further held that non-disclosure should not cause any disadvantage to the employee at a later date.

It was held by the Division Bench that OM has been published as a welfare measure for employees who applied against vacancy prior to 22nd December 2003. It was observed that there had not been any mala fide intention on the part of the employee in not disclosing his pending application for the post of Lower Grade Clerk at the time of joining as Peon.

It was further held that Tribunal should have appreciated the beneficial nature of the OM. The Tribunal should not have adopted strict and technical approach for rejecting a welfare scheme meant for the benefit of employees.

The judgment in Shreya Kumari Tirkey vs. The State of Jharkhand was relied upon wherein it was held by the Supreme Court that procedure being a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use.

It was further held that in case of interpretation of welfare scheme, both Courts and authorities should take a broad and pragmatic view and not a narrow view so that the welfare object is fulfilled. The entire purpose of the welfare scheme will be frustrated if strict approach is adopted.

With the aforesaid observation, the order of the Tribunal was set aside by the Division Bench. The respondent was directed to reconsider the employee’s prayer seeking benefit in terms of OM.

With the aforesaid observations, the writ petition filed by the employee was disposed of by the Division Bench.

Counsel for the Petitioners : Gopala Binnu Kumar, Samson Write a detailed, human-like, plagiarism-free legal article based on the provided case summary.