In re Selvi and Another

K. N. Mudaliyiar, J.—The two petitioners were accused of an offence punishable u/s 6 (b) of the Suppression of Immoral Traffic in Women and Girls Act, in that on 20-2-1973 at about 9-30 P.M., at Edward Elliots Road, Kalayani Hospital, the accused solicited one Raju and demanded Rs. 10 to have sexual intercourse with any one of the two accused and thereby caused annoyance and obstruction to Raju.

The learned Sixth Presidency Magistrate (as he then was) questioned the accused-petitioners u/s 242, Cr.P.C., to show cause why they should not be convicted. The two petitioners denied the offence and pleaded not guilty. Thereafter, the statutory duty enjoined on the Magistrate is to proceed to hear the complainant and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as they produce in their defence, u/s 244 of the Code of Criminal Procedure. If there is no admission on the part of the petitioners entailing a conviction in terms of Section 243, Cr. P. C, the inevitable duty of the Magistrate is to record evidence u/s 244, Cr.P.C. The Code does not warrant the subsequent admission of guilt on the part of the petitioners, when once there is a denial of the offence, u/s 242, Cr.P.C.

Clearly, the procedure followed by the learned Magistrate is opposed to law. This view of mine derives strength from the two decisions reported in In Re: M. Kuppuswamy, and Latha In re, (Cri. R. C. No. 1158 of 1972 of this Court -judgment, D/- 17-1-1974 (Mad.).

The revision petition is allowed. The convictions and sentences awarded against the two petitioners are set aside. The fine amounts, if paid, will be refunded to the petitioners.