Telangana High Court
Sadula Kiran Raj vs The State Of Telangana on 29 March, 2022
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.1217 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.163 of 2021 on the file of the Principal Junior Civil Judge - cum - VII Additional Metropolitan Magistrate, Cyberabad at Kukatpally.
2. The petitioner herein is accused No.4 in the said PRC. The offences alleged against him are under Section - 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 Mr. R. Sridhar, learned counsel for the petitioner and the learned Assistant Public Prosecutor appearing on behalf of respondents - State.
4. In the charge sheet, the allegation against the petitioner herein - accused No.4 is that on 30.12.2020, he went to Gajularamaram on work, and after completion of work, he came to 2 KL,J Crl. P No.1217 of 2022 Miyapur. Since he has found some time, he has decided to enjoy with girls. He has searched for some Website and called them. He went to Ocean Miraki Spa at Room No.105, Gurudatta Sai Apartments, Gokul Plots, Miyapur. On the instructions of the receptionist, he paid money and went into the room. In the meanwhile, the police raided the said Spa run by accused No.1. Accused No.1 is the Organizer, accused No.2 is the receptionist and accused Nos.3 and 4 are the customers. The police have also seized the mobiles, cash of Rs.8,000/- and four Condom packets.
5. Mr. R. Sridhar, learned counsel for the petitioner, referring to the contents of the charge sheet, would submit that though petitioner herein went to the Spa, never exploited any women, much less a trafficked person. He would further submit that the contents of the charge sheet lacks the ingredients of the offences under Section - 370A of the IPC and Sections - 3, 4 and 5 of the PITA. Therefore, according to him, the Investigating Officer without considering the said aspects laid the charge sheet against the petitioner herein. It is nothing but abuse of process of law. He has also relied upon the principle laid down by the High Court of 3 KL,J Crl. P No.1217 of 2022 Judicature at Hyderabad for the States of Telangana and Andhra Pradesh in Mohammad Riyaz v. The State Of Telangana1. With the said submissions, he sought to quash the proceedings against the petitioner herein.
6. On the other hand, learned Assistant Public Prosecutor would submit that there is specific allegation against the petitioner herein. On 30.12.2020 he has decided to enjoy with girls. He contacted the Spa people and went there to enjoy with the girls. He has paid money. On the instructions of the Receptionist, he went into the room to enjoy with the girls. Therefore, he is a customer. There are specific allegations against the petitioner herein. He would further submit that though the contents of the charge sheet lacks the ingredients of Section - 370 of the IPC and Sections - 3, 4 and 5 of the PITA, the same would constitute an offence under Section - 370A (2) of the IPC. He would further submit that the proceedings are at PRC stage, and the Committal Court on consideration of the entire material including the statements of the witnesses recorded under Section - 161 of the Cr.P.C. and the 1 . Criminal Petition No.5803 of 2018, decided on 27.06.2018 4 KL,J Crl. P No.1217 of 2022 contents of the charge sheet may take cognizance for the offence under Section - 370A (2) of the IPC and may not take cognizance for the offences under Section - 370 of the IPC and Sections - 3, 4 and 5 of the PITA. Though the offences alleged against the petitioner herein are under Section - 370 of the IPC and Sections - 3, 4 and 5 of PITA, this Court has power under Section - 482 of the Cr.P.C. to direct the Committal Court to take cognizance against the petitioner herein for the offence under Section - 370A (2) of the IPC. He has also placed reliance on the principle laid down by the High Court for the States of Telangana and Andhra Pradesh in S. Naveen Kumar v. The State of Telangana2.
7. In view of the said rival submissions, the undisputed facts are that the petitioner herein is accused No.4 in the aforesaid PRC. He is doing job in Canara Bank and also Software job. On 30.12.2020, he went to Gajularamaram on work and on completion of work, he came to Miyapur and since he has some time, he has decided to enjoy with girls. He has searched on the website and ultimately he made a call to the aforesaid Spa and went there for 2 . 2015 (2) ALD (Crl.) 156 (AP) 5 KL,J Crl. P No.1217 of 2022 the purpose of enjoying with the girls. He has contacted the receptionist and paid money there. On the instructions of the receptionist, he went into the room to enjoy with the girls. In the meanwhile, the police raided the said Spa. Thus, this Court is of the opinion that the petitioner is a customer.
8. In view of the rival submissions, it is apt to refer to the provisions of Sections - 370 and 370A of the IPC and Sections - 3, 4 and 5 of the PITA, which are as under:
"370-A. Exploitation of a trafficked persons._ (1) xxxxx (2) Whoever, knowingly by or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than three years, but which may extend to five years, and shall also be liable to fine."
"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 6 KL,J Crl. P No.1217 of 2022 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 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 7 KL,J Crl. P No.1217 of 2022 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 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 8 KL,J Crl. P No.1217 of 2022 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,-
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 9 KL,J Crl. P No.1217 of 2022 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.
9. As discussed above, the petitioner herein is a customer. Therefore, the contents of the charge sheet lack the ingredients of Section - 370 of the IPC and Sections - 3, 4 and 5 of the PITA. A customer to flesh trade cannot be treated as offender under Sections - 3, 4 and 5 of PITA. There is no allegation against the petitioner herein that he has recruited, transported, harboured, transferred or received a person for the purpose of exploitation. In Mohammad Riyaz1 relied upon by the learned counsel for the petitioner, the High Court for the States of Telangana and the Andhra Pradesh referring to the principle laid down in S. Naveen Kumar2 and Vinod @ Vijay Bhagubhai Patel v. State of Gujarat [2017 (4) GLR 2804] quashed the proceedings against the customer for the offences punishable under Section - 370 of the IPC and Sections 3 to 5 of the PITA, however, permitted the Magistrate concerned to proceed further for the offence under Section - 370A (2) of the IPC. Therefore, this Court is of the considered opinion that the contents of the charge sheet lack the 10 KL,J Crl. P No.1217 of 2022 ingredients of Section - 370 of the IPC and Sections - 3, 4 and 5 of the PITA.
10. It is relevant to note that in S. Naveen Kumar2 referring to the provisions of PITA, IPC and also the amendment to the IPC, held that this Court in exercise of its inherent power under Section
- 482 of the Cr.P.C. to secure the ends of justice, can give a direction when the material placed by the prosecution i.e., charge sheet discloses the commission of offence under Section 370A of the IPC. In view of the same, the Committal Court has to take cognizance for the offence under Section - 370A of the IPC against the petitioner herein, a customer. Though the Investigating Officer has not laid the charge sheet against the petitioner herein - accused No.4 for the said offence, still the Committal Court, on consideration of the entire material on record including the contents of the charge sheet, can take cognizance against the petitioner herein, a customer for the said offence i.e., 370A (2) of the IPC.
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KL,J Crl. P No.1217 of 2022
11. In view of the above discussion, the proceedings in P.R.C. No.163 of 2021 on the file of the Principal Junior Civil Judge - cum - VII Additional Metropolitan Magistrate, Cyberabad at Kukatpally are hereby quashed against the petitioner herein - accused No.4 for the offences under Section - 370 of the IPC and Sections - 3, 4 and 5 of the PITA. However, the learned Magistrate / Committal Court is directed to take cognizance under Section - 370A (2) of the IPC against the petitioner herein - accused No.4.
12. The present Criminal Petition is accordingly disposed of.
As a sequel thereto, Miscellaneous Petitions, if any, pending in the Criminal Petition stand closed.
____________________ K. LAKSHMAN, J th 29 March, 2022 Mgr