1 CRA No. 645 of 2016 2025:CGHC:18966-DB AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 645 of 2016 [Arising out of judgment dated 30.03.2016 passed in Sessions Trial No. 115/2015 by the Additional Sessions Judge, Fast Track Court, Raigarh, Chhattisgarh] 1. Vijay Kerketta S/o Sukhuram Kerketta, aged about 50 years; 2. Jagawati Bai W/o Buleram Ekka, aged about 48 years, Both are R/o Village Vijaynagar Katmohalipara, Police Station Kapu, District Raigarh, Chhattisgarh. ... Appellants versus  State of Chhattisgarh, through the Station House Officer, Police Station Kapu, Civil and Revenue District Raigarh, Chhattisgarh. ... Respondent For Appellants :- Mr. Apoorva Tripathi, Advocate. For State-Respondent :- Mr. Pankaj Singh, Panel Lawyer. Division Bench Hon'ble Shri Justice Sanjay K. Agrawal & Hon'ble Shri Justice Deepak Kumar Tiwari Judgment On Board (23.04.2025) Sanjay K. Agrawal, J 1. Assail in the present criminal appeal filed under Section 374(2) of the CrPC preferred by the appellants herein namely Vijay Kerketta (A-1) and Jagawati Bai (A-2), is to the legality, ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.05.02 15:12:15 +0530 2 CRA No. 645 of 2016 validity and correctness of the judgment dated 30.03.2016 passed by the Additional Sessions Judge, Fast Track Court, Raigarh, Chhattisgarh, in Sessions Trial No. 115/2015, by which the appellants herein have been convicted for offence under Section 370(4) of the IPC and sentenced thereunder to suffer imprisonment for life with fine of ₹ 1,000/- each; in default of payment of fine amount the appellants have to undergo additional imprisonment for six months while acquitting them from offences under Sections 363, 371, 374/34 of the IPC. 2. In the instant case, the charges against the appellants were framed on 20.11.2015 for offences under Sections 363, 370, 371 374/34 of the IPC, and finally the appellants have been convicted and sentenced for offence under Section 370(4) of the IPC, however Section 370 of the IPC was amended by Criminal Law (Amendment) Act, 2013 and came into force w.e.f. 03.02.2013. Prosecution story:- 3. Twelve years prior to 09.06.2015, the date of lodging the FIR (Ex.P/4), the appellants herein in furtherance of their 3 CRA No. 645 of 2016 common intention abducted the victim Shantibai (PW-5), who was aged about 8 years at the time of offence, from the lawful guardianship of her parents by enticing her to give better education and took her to Delhi where she was kept as a maid and was also exploited her against her wishes. Against the said act of the appellants, father of the victim Dharkuram (PW-3) made a written complaint vide Ex.P/3 by stating that A-1 Vijay Kerketta, took his daughter to Delhi for giving her (PW-5) better education, but A-1 sold his daughter and engaged her as maid servant and even when he (PW-3) asked A-1 about his daughter, A-1 kept deceiving him by saying that his daughter (PW-5) has been studying for a long time, pursuant to which FIR was registered vide Ex.P/4 on 09.06.2015. Crime details from was prepareed vide Ex.P/2. Wheels of investigation started running and the appellants were arrested. 4. After due investigation, appellant herein was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant / accused abjured his guilt and entered into defence. 4 CRA No. 645 of 2016 5. In order to bring home the offence, prosecution has examined as many as 8 witnesses and exhibited 13 documents, whereas, defence, in support of its case, has neither examined any witness nor exhibited any document. The statement of the appellant / accused was recorded under Section 313 of the CrPC in which he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. 6. The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellants / accused persons for the offence as mentioned in the opening paragraph of the judgment, against which the appeal has been preferred by the appellants herein questioning the impugned judgment of conviction and order of sentence. Submission of the Parties:- 7. Mr. Apoorva Tripathi, learned counsel for the appellant, would submit that the prosecution has not been able to bring home the offence beyond reasonable doubt. He would also submit that admittedly the alleged offence had been taken 5 CRA No. 645 of 2016 place in the year 2003 against which the victim’s father Dharkuram (PW-3) made a complaint vide Ex.P/3 pursuant to which FIR was registered vide Ex.P/4 on 09.06.2015 and the charges for offence under Section 370 of the IPC against the appellants were framed on 20.11.2015 and they have been finally convicted for offennce under Section 370(4) of the IPC, however Section 370(4) of the IPC was brought into force by Criminal Law (Amendment) Act, 2013 w.e.f. 03.02.2013, therefore, the appellant could not be convicted for offence under Section 370(4) of the IPC. He would further submit that by virtue of Article 20(1) of the Constitution of India the appellants could not be convicted for offence under Section 370(4) of the IPC as Article 20(1) of the Constitution of India prohibits the retrospective penal legislation and no person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence. He would further submit that it is well settled that a penal provision that enhances punishmnent or introduces a new offence cannot be applied retrospectively. In support of his submission, learned counsel for the appellants relied upon the decisions rendered by the 6 CRA No. 645 of 2016 Supreme Court in the matters of T. Barai v. Henry Ah Hoe and another 1 , and Ratan Lal v. State of Punjab 2 , therefore, the conviction of the appellants for offence under Section 370(4) and imposing sentence for imprisonment for life is totally illegal and constitutionally impermissible by virtue of Article 20(1) of the Consitutiton of India. Hence the conviction of the appellants for offences in question is liable to be set aside and they are entitled to be acquitted. 8. Mr. Pankaj Singh, learned State counsel, would support the impugned judgment and submit that prosecution has been able to bring home the offence beyond reasonable doubt. He would also submit that the trial Court has rightly convicted the appellants for the offence in question and, therefore, the appeal of the present appellants deserves to be dismissed. 9. We have heard learned counsel for the parties, considered their rival submissions made herein-above and perused the records minutely. 1 (1983) 1 SCC 177 2 AIR 1965 SC 444 7 CRA No. 645 of 2016 Discussion & Analysis:- 10.Admittedly, in the instant case, the appellants have been convicted for offence under Section 370(4) of the IPC and as per the prosecution, the incident had taken place twelve years prior to date of filing the FIR (Ex.P/4) i.e. 09.06.2015, at village Geetkalo, Police Station Kapu, District Raigarh, Chhattisgarh, and charges were framed by the trial Court on 20.11.2015 for offence under Section 370 of the IPC which includes Section 370(4) of the IPC in which sentence for imprisonment for life has been prescribed by the Criminal Law (Amendment) Act, 2013 against accused who commits the offence of trafficking for the purpose of exploitation, recruits, transports, harbours, tranfers and receives, a person or persons. However, in the present case, though the offence was committed prior to the amendment of Section 370 of the IPC w.e.f. 03.02.2013 but the charges were framed against the present appellants under the amended Section 370(4) of the IPC on 20.11.2015. 11.At this stage, it would be appropriate to notice Article 20(1) of the Constitution of India, which states as under:- 8 CRA No. 645 of 2016 “20. Protection in respect of conviction for offences : - (1) No person shall be convicted of any offence except for violation of the law in force at the time of commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.” 12.A careful perusal of Article 20(1) of the Constitution of India would show that it prohibits retrospective penal legislation and mandates that no person can be convicted of any offence excpet for violation of the law in force at the time of the commission of the act charged as an offence. Further, in Principles of Statutory Interpretation by Justice G. P. Singh 3 , it has been held that penal statutes which create offences or which have effect of increasing penalities for existing offences will only be prospective by reason of the constitutional restriction imposed by Article 20 of the Constitution of India. Even otherwise they are construed prospective “because it manifestly shocks one’s sense of justice that that an act, legal at the time of doing it, should be made unlawful by some new enactment”. As such, it is a settled principle of interpretation of criminal law that such provisions have to be strictly construed and cannot be given a 3 6.2.6 Penal Statues, at page No. 424 in 15th Edition 9 CRA No. 645 of 2016 retrospective effect unless the legislative intent and expression is clear beyond ambiguity. 13.In the matter of T. Barai (supra) their Lordships of the Supreme Court have held that insofar as the Central Amendment Act creates new offences or enhances punishmnent for a particular type of offence no person can be convicted by such ex post facto law nor can the enhanced punishment prescribed by the amendment would be applicable and held as under:- “22. It is only retroactive criminal legislation that is prohibited under Article 20(1). The prohibition contained in Article 20(1) is that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence prohibits nor shall he be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It is quite clear that insofar as the Central Amendment Act creates new offences or enhances punishment for a particular type of offence no person can be convicted by such ex post facto law nor can the enhanced punishment prescribed by the amendment be applicable. But insofar as the Central Amendment Act reduces the punishment for an offence punishable under Section 16(1)(a) of the Act, there is no reason why the accused should not have the benefit of such reduced punishment. The rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigour of the law. The principle is based both on sound 10 CRA No. 645 of 2016 reason and common sense. This finds support in the following passage from Craies on Statute Law, 7th Edn., at pp. 388-89: “A retrospective statute is different from an ex post facto statute. “Every ex post facto law…” said Chase, J., in the American case of Calder v. Bull [3 US (3 Dall) 386: 1 L Ed 648 (1798)] “must necessarily be retrospective, but every retrospective law is not an ex post facto law. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive; it is a good general rule that a law should have no retrospect, but in cases in which the laws may justly and for the benefit of the community and also of individuals relate to a time antecedent to their commencement: as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigour of the criminal law, but only those that create or aggravate the crime, or increase the punishment or change the rules of evidence for the purpose of conviction.... There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime.”” 14.Coming to the facts of the present case in light of the the principles of law laid down by their Lordships of the Supreme Court in the matter of T. Barai (supra) as well as the mandates contained under Article 20(1) of the Constitution of India, it is quite vivid that Section 370(4) of the IPC was not in 11 CRA No. 645 of 2016 statute book at the time when the offence under Section 370 of the IPC was allegedly committed by the present appellants and, therefore, the learned trial Court is absolutely unjustified in convicting the two appellants herein for offence under Section 370(4) of the IPC which was not in force at the time when the offence was allegedly committed. Section 370(4) of the IPC came into force w.e.f. 03.02.2013, whereas, in the present case the offence in question was committed twelve years prior to the date of lodging the FIR (Ex.P/4) i.e. 09.06.2015, as such, in light of Article 20(1) of the Consitutiton of India and also in light of decision rendered by the Supreme Court in the matter of T. Barai (supra), we are of the considered opinion that the present two appellants namely Vijay Kerketta (A-1) and Jagwati Bai (A-2) could not be convicted for offence under Section 370(4) of the IPC, which was brought ino statute book only from 03.02.2013. Conclusion:- 15. In view of the aforesaid discussion and analysis, the impugned judgment of conviction and order of sentence dated 30.03.2016 passed by the trial Court convicting and 12 CRA No. 645 of 2016 sentencing the appellants for the offence under Section 370(4) of the IPC, is hereby set aside and the appellants are entitled for acquittal. Appellants are stated to be on bail. They need not surrender. However, their bail bonds shall remain in operation for a period of six months as per provisions contained in Section 437-A of the CrPC. 16. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith for information and necessary action, if any. Sd/- Sd/- (Sanjay K. Agrawal) (Deepak Kumar Tiwari) Judge Judge Ankit