In Re: Selvi and another

K.N. Mudaliyar, J.—The two Petitioners were accused of an offence punishable u/s 8(b) of the Suppression of Immoral Traffic in Women and Girls Act, in that on 20th February 1973 at about 9-30 p.m. at Edward Elliots Road, Kalyani 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 Code of Criminal Procedure to show cause why they should not be convicted. The two Petitioners denied the offence and pleaded not guilty. Thereafter the statutory duly 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, Code of Criminal Procedure. If there is no admission on the part of the Petitioners entailing a conviction in terms of Section 243, Code of Criminal Procedure the inevitable duty of the Magistrate is to record evidence u/s 244 Code of Criminal Procedure. 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 Code of Criminal Procedure.

Clearly, the procedure followed by the learned Magistrate is opposed to law. This view of mine derives strength from the two decisions reported in State of Punjab Vs. Major Singh, and Latha and Ors., In re Crl.R.C. No. 1158/1972 of this Court''s judgment dated 17th January 1974.

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.