Telangana High Court
Pudur Arun Kumar vs The State Of Telangana on 20 April, 2022
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.3683 OF 2022
ORDER:
This Criminal Petition is filed under Section - 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') to quash the proceedings in P.R.C. No.36 of 2021 on the file of the III Additional Metropolitan Magistrate at Hyderabad.
2. The petitioner herein is accused No.5 in the said PRC. The offences alleged against him are under Sections - 370 of the Indian Penal Code, 1860 (for short 'IPC') and Sections - 3, 4 and 5 of the Prevention of Immoral Traffic Act, 1956 (for short 'PITA').
3. Heard Mrs. Nikhat Sajida, learned counsel for the petitioner and the learned Assistant Public Prosecutor appearing on behalf of respondents.
4. The contents of the charge sheet would disclose that accused Nos.1 to 4 are brothel house organizers. They procure the victim sex workers, LWs.2 to 8 by luring them that they would give them Rs.15,000/- per day. The petitioner herein has been working in Polo Service Apartments and he being senior in the 2 KL,J Crl. P No.3683 of 2022 Hotel, everyone was in his control. Taking advantage of the same, the petitioner colluded with accused Nos.1 and 2 and keeps the sex workers belonging to this Nation and other Nations in the Hotel rooms and running brothel activities in the Hotel rooms on commission basis from accused No.1 and 2. Further, the petitioner also used to collect the amounts from customers who used to visit the rooms in Hotel to have sex with sex workers. Further, accused No.6, who is also an employee at Aditya Park Hotel, used to send some sex workers to keep in the Polo Hotel Rooms when his hotel does not have room vacancies.
5. On reliable source of information that some persons have been organizing prostitution business with foreign nation ladies at Aditya Park Hotel, Ameerpet, Hyderabad, LW.1 with the aid of panch witnesses and his staff, on 02.04.2019 at 00:30 hours conducted a raid in Aditya Park Hotel. When they knocked the door of room No.308 of the said Hotel, accused No.7 opened the door and on being questioned he disclosed that he saw an advertisement in Online stating that foreign girls are available for prostitution and he called mobile No.7097013669 on which he was 3 KL,J Crl. P No.3683 of 2022 informed that they would charge Rs.5000/- for one time sex and on his negotiations, the amount was reduced to Rs.4000/-, and on the instructions of organizers, he came to the said room and had sex with Uzbekistan Lady and gave her the said amount of Rs.4,000/-. Further, the lady (LW.2) found in the said room disclosed that she was procured by accused Nos.1 to 4 who brought her and other girls from Uzbekistan and other places in India and organizing the prostitution business by lodging them in Hotel Aditya and Polo Service Apartment in Somajiguda, Hyderabad and sending customers to them. She also informed LW.1 about another sex worker available in Room No.409 and accordingly LW.1 went there and rescued her. Her name is Smarania Naskar belongs to West Bengal State.
6. On receipt of further information, LW.1 and his team went to Polo Service Apartments, Somajiguda, Hyderabad, and found LWs.3 to 7 - sex workers / victims in Room Nos.203, 204, 205, 208 and 301 and rescued them. The police seized the amounts, mobile phones and Condoms etc. The said rooms in Polo Service Apartments were booked by LWs.3 to 7 with the help of 4 KL,J Crl. P No.3683 of 2022 the petitioner herein and accused No.6 and accused Nos.1 to 4 have been sending customers who call them over phone and the victims themselves collect the money on behalf of accused Nos.1 to 4 and hands it over to them at the end of the day or the next day. Thus, all the accused persons including the petitioner herein have committed the aforesaid offences.
7. Mrs. Nikhat Sajida, learned counsel for the petitioner, referring to the contents of the charge sheet, would submit that the petitioner herein is an employee of the said Polo Service Apartments, Somajiguda and, therefore, his presence in the said Hotel cannot be doubted. The victims examined as LWs.2 to 8 never disclosed the name of the petitioner herein in the commission of the aforesaid offences. Moreover, in the entire complaint, there is no whisper with regard to the petitioner herein. The name of the petitioner was added subsequently by LW.25 stating that he received credible information on 01.05.2019 at about 19:00 hours that the petitioner herein, employee of Polo Service Apartments was supporting the illegal activities doing by accused Nos.1 and 2. 5
KL,J Crl. P No.3683 of 2022 There is no mention of the name whom LW.25 received the said information.
i) Learned counsel would also submit that the contents of the charge sheet lack the ingredients of the offences alleged against him. Further, the petitioner herein was implicated in the subject crime. The petitioner is innocent of the offences alleged and that he is no way concerned with the allegations levelled against him. The Investigating Officer without considering all the said aspects laid the charge sheet hastily. Therefore, continuation of the proceedings in the subject crime against the petitioner is nothing but an abuse of process of law. In view of the same, she sought to quash the proceedings against the petitioner herein in the subject crime.
8. On the other hand, learned Assistant Public Prosecutor would submit that there are specific allegations against the petitioner herein including the role played by him. The victims were allotted room Nos.203, 204, 205, 208 and 301 in Polo Service Apartments with the help of the petitioner herein only. Since the petitioner is working in the said Polo Service Apartments since five 6 KL,J Crl. P No.3683 of 2022 years and he is the senior. Taking advantage of the same, he colluded with accused Nos.1 and 2 in keeping the sex workers from this Nation and other Nations in hotel rooms on commission basis from accused Nos.1 and 2. He would further submit that there are specific allegations in the charge sheet attracting the ingredients of the offences under Section - 370 of the IPC and Sections - 3, 4 and 5 of the PITA. The Investigating Officer after recording the statements of the witnesses under Section - 161 of the Cr.P.C. and considering the entire material available before him only filed the charge sheet. In view of the same, he requested to dismiss the present petition.
9. In view of the said rival submissions, the undisputed facts are that the petitioner herein is accused No.5 in the aforesaid PRC. It is also not in dispute that he is an employee in Polo Service Apartments, Somajiguda, Hyderabad. The allegation against the petitioner herein is that taking advantage of his employment in the said Apartments, he colluded with accused Nos.1 and 2 in keeping the sex workers belonging to this Country and other Countries in 7 KL,J Crl. P No.3683 of 2022 the rooms of his Hotel rooms on commission basis from accused Nos.1 and 2.
10. In view of the rival submissions, it is apt to refer to the provisions of Section - 370 of IPC and Sections - 3, 4 and 5 of the PITA, which are as under:
"370. Trafficking of person.--(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 practicing 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 any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.8
KL,J Crl. P No.3683 of 2022 Explanation 2.--Theconsent of the victim is immaterial in 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.
(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, and shall also be liable to fine.
(5) Where the offence involves the trafficking of more than one minor, 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, and shall also be liable to fine.
(6) If a person is convicted of the offence of trafficking of minor 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, and shall also be liable to fine.
(7) When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, 9 KL,J Crl. P No.3683 of 2022 which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine."
PITA "3. Punishment for keeping a brothel or allowing premises to be used as a brothel.
(1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees. (2) Any person who-
a. being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, or b. being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is wilfully a party to the use of such premises or any part thereof as a brothel, shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine. (2A) For the purposes of sub-section (2) it shall be presumed until the contrary is proved, that any person referred to in clause (a) or clause (b) of that sub-section, is knowingly allowing the premises 10 KL,J Crl. P No.3683 of 2022 or any part thereof to be used as a brothel or, as the case maybe, has knowledge that the premises or any part thereof are being used as a brothel, if, -
a. a report is published in a newspaper having circulation in the area in which such person resides to the effect that the premises or any part thereof have been found to be used for prostitution as a result of a search made under this Act; or b. a copy of the list of all things found during the search referred to in clause (a) is given to such person. (3) Notwithstanding anything contained in any other law for the time being in force, on conviction of any person referred to in clause (a) or clause (b) of sub-section (2) of any offence under that sub-section in respect of any premises or any part thereof, any lease or agreement under which such premises have been leased out or are held or occupied at the time of the commission of the offence, shall become void and inoperative with effect from the date of the said conviction.
4. Punishment for living on the earnings of prostitution.- (1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of any other person shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both and where such earnings relate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years.
(2) Where any person over the age of eighteen years is proved - a. to be living with, or to be habitually in the company of, a prostitute; or 11 KL,J Crl. P No.3683 of 2022 b. to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding, abetting or compelling her prostitution; or c. to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contrary is proved, that such person is knowingly living on the earnings of prostitution of another person within the meanings of Sub-section (1).
5. Procuring, including or taking person for the sake of prostitution. -
(1) Any person who -
a. procures or attempts to procure a person, whether with or without his consent, for the purpose of prostitution; or b. includes a person to go from any place, with the intent that he, may for the purpose of prostitution become the inmate of or frequent, a brothel; or c. takes or attempts to take a person, or causes a person to be taken, from one place to another with a view to his carrying on or being brought up to carry on prostitution; or d. causes or induces a person to carry on prostitution; shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years:
Provided that if the person of whom an offence committed under this sub-section,-12
KL,J Crl. P No.3683 of 2022 i. is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and ii. is a minor, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years. XXXXX (3) An offence under this section shall be triable -
a. in the place from which a person is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such person is made; or b. in the place to which he may have gone as a result of the inducement or to which he is taken or caused to be taken or an attempt to take him is made.
11. In view of the above, as far as the offence under IPC is concerned, prima facie, the contents of the charge sheet attract the offence under sub-section (1) (e) of Section - 370 of IPC against the petitioner.
12. As far as the offences under PITA are concerned, as extracted above, Section - 3 of the Act deals with punishment for keeping a brothel or allowing premises to be used as a brothel, while Section- 4 of the Act deals with punishment for living on the earnings of prostitution and Section - 5 of the Act deals with 13 KL,J Crl. P No.3683 of 2022 procuring, inducing or taking person for the sake of prostitution. In view of the same, in the case on hand, the contents of the charge sheet do not attract the ingredients of offence under Section - 5 of the PITA. Therefore, this Court is of the considered opinion that the contents of the charge sheet lack the ingredients of Section - 5 of the PITA.
13. In view of the above discussion, the proceedings in P.R.C. No.36 of 2021 on the file of the III Additional Metropolitan Magistrate, Hyderabad, are hereby quashed against the petitioner herein - accused No.5 for the offence under Section - 5 of the PITA only. However, the proceedings in the said PRC other offences under Section - 370 of IPC and Sections - 3 and 4 of the PITA can be continued.
14. The present Criminal Petition is accordingly allowed in part.
As a sequel thereto, Miscellaneous Petitions, if any, pending in the Criminal Petition stand closed.
____________________ K. LAKSHMAN, J th 20 April, 2022 Mgr