Telangana High Court
Yerram Kishore Kumar vs The State Of Telangana And Another on 5 July, 2022
Author: Chillakur Sumalatha
Bench: Chillakur Sumalatha
IN THE HGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
*****
CRIMINAL PETITION No.5807 OF 2022
Between:
Yarram Kishore Kumar, S/o. Yerram Veeraiah,
Aged about 40 years, Occ: Business,
R/o.Flat No.146, Karthik Enclave,
Near Diamond Point, Sikh Village,
Manovikash Nagar, Tirmalgiri,
Hyderabad, Telangana.
...Petitioner/Accused No.3
VERSUS
1. The State of Telangana,
Through its Public Prosecutor,
High Court for the State of Telangana at Hyderabad.
2. R.Sharath Chandra,
Aged Major, Occ: Sub Inspector of Police,
Police Station Banjara Hills, Hyderabad.
....Respondents/Complainants
ORDER/JUDGMENT PRONOUNCED ON: 05.07.2022
THE HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA
1. Whether Reporters of Local newspapers may : Yes
be allowed to see the Judgments?
2. Whether the copies of judgment may be : Yes
marked to Law Reporters/Journals?
3. Whether Her Ladyship wishes to see the fair : Yes
copy of the Judgment?
_____________________________
Dr. CHILLAKUR SUMALATHA, J
2
Dr.CSL, J
Crl.P.No.5807 of 2022
* THE HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA
+CRIMINAL PETITION No.5807 OF 2022
% Dated 05.07.2022
Between:
#Yarram Kishore Kumar, S/o. Yerram Veeraiah,
Aged about 40 years, Occ: Business,
R/o.Flat No.146, Karthik Enclave,
Near Diamond Point, Sikh Village,
Manovikash Nagar, Tirmalgiri,
Hyderabad, Telangana.
...Petitioner/Accused No.3
VERSUS
$.1. The State of Telangana,
Through its Public Prosecutor,
High Court for the State of Telangana at Hyderabad.
2. R.Sharath Chandra,
Aged Major, Occ: Sub Inspector of Police,
Police Station Banjara Hills, Hyderabad.
.... Respondents/Complainants
! Counsel for the petitioner : Sri Achyuth Bharadwaj
^ Counsel for the respondents : Asst. Public Prosecutor
< GIST : ---
>HEAD NOTE : ---
? Cases referred : 1. 2022 (1) ALD (Crl.) 92 (AP)
: 2. Crl.P.No.3158 of 2015.
: 3. Crl.P.No.4445 of 2021
3
Dr.CSL, J
Crl.P.No.5807 of 2022
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
CRIMINAL PETITION No.5807 of 2022
ORDER:
Seeking to quash the proceedings that are pending against the petitioner in PRC No.191 of 2022 on the file of the Court of III Additional Metropolitan Magistrate, Hyderabad, the present criminal petition is filed.
2. Heard the submission of Sri Achyuth Bharadwaj representing the petitioner and learned Assistant Public Prosecutor who argued on behalf of respondent No.1.
3. The Detective Inspector of Police, Banjara Hills Police Station, Hyderabad laid charge sheet against the petitioner and two others. The petitioner herein is arrayed as accused No.3. The contents of the charge sheet are that the other two accused i.e., accused Nos. 1 and 2 committed offences punishable under Section 370, 370(A)(2) of Indian Penal Code and petitioner/accused No.3 has committed offence 4 Dr.CSL, J Crl.P.No.5807 of 2022 punishable under Section 3, 4 and 5 of Immoral Traffic (Prevention) Act, 1956.
4. The case facts in capsule are that on 11.05.2022, the Sub Inspector of Police, Banjara Hills police station, Hyderabad received credible information that some persons are running brothel house and on that he conducted raid of the premises wherein the said activities were reported to be going-on and found the accused Nos.1 and 2 maintaining brothel house by procuring sex workers and that the petitioner/accused No.3 visited the said place to have sexual intercourse with one of those sex workers.
5. Making his submission, the learned counsel for the petitioner contended that the contents of the charge sheet does not satisfy the ingredients of Section 3, 4 and 5 of Immoral Traffic (Prevention) Act, 1956 as far as the petitioner/accused No.3 is concerned and the acts if, any, committed by the petitioner does not fall with the realm of those provisions and, therefore, no criminal liability can be fastened against the said person and hence the 5 Dr.CSL, J Crl.P.No.5807 of 2022 proceedings that are pending against him have to be quashed.
6. Learned counsel in this regard relied upon the decision of the High Court of Andhra Pradesh at Amaravathi in a case between Padala Venkata Sai Rama Reddy vs. State of Andhra Pradesh and Others1 wherein the Court at para 5 of the order observed as follows :-
"This Court finds considerable merit in the said contention of the petitioner. In fact, the legal position whether a customer who visits the brothel house is liable for prosecution or not is no more an undecided question of law. The said issue has come up before this Court several times and this Court after analyzing the provisions of the Immoral Traffic (Prevention) Act held that a person who visits the brothel house as a customer is not liable for prosecution."
7. On the other hand, making a submission that even if the acts does not fall squarely within the purview of 1 2022 (1) ALD (Crl.) 92 (AP) 6 Dr.CSL, J Crl.P.No.5807 of 2022 Section 3,4 and 5 of Immoral Traffic (Prevention) Act, 1956, the prosecution is maintainable under Section 370-A Indian Penal Code, learned Assistant Public Prosecutor relied upon the decision of this Court which is rendered in a case between S.Naveen Kumar vs State of Telangana in Criminal Petition No.3158 of 2015 dated 28.04.2015, wherein the Court held as follows:
"It shall be noted that in the wake of gang rape of Nirbhaya in Delhi which arose an unprecedent public furore, Government considered it fit to drastically amend several provisions of IPC and in that direction appointed a Committee under the Chairmanship of late Justice J.S.Verma, the former Chief Justice of India. The Committee after interacting cross sections of stake holders submitted its detailed report suggesting amendments and introduction of various provisions in penal laws like IPC, Cr.P.C., Evidence Act etc. Consequent upon the said report sub-clause (2) of Section 370 IPC was amended and Section 370A IPC was introduced. Having regard to the avowed 7 Dr.CSL, J Crl.P.No.5807 of 2022 object with which report was submitted and amendments and new provisions were introduced in several acts, it cannot be presumed for the moment that Legislators considered customer as an innocent victim in the flesh trade. Therefore, Section 370A takes in its fold the customer also. So, despite the police charge sheeting petitioner/A3 only for the offence under Section 4 of PIT Act and the Committal Court accepting the same, it is evident from the charge sheet that the petitioner/A3 is prima facie liable for charge under Section 370A though not under Section 4 of PIT Act with which he was charge sheeted.
7) Now, the crucial question is whether the High Court in its inherent power under Section 482 Cr.P.C. while quashing the proceedings against the petitioner/A3 for the offence under Section 4 of PIT Act can direct the Committal Court to take cognizance of offence under Section 370A IPC against him.
a) In my considered view, to secure the ends of justice, the High Court can exercise its inherent power to give such direction when the material placed by the prosecution i.e. charge sheet 8 Dr.CSL, J Crl.P.No.5807 of 2022 discloses the commission of offence under Section 370A IPC."
8. The same view was taken by this Court also in the decision that is rendered in a case between Suvarna vs State of Telangana and another in Criminal Petition No. 4445 of 2021 dated 16.06.2021, wherein the Court at para No. 10 of the order held as follows:
"Therefore, this Criminal Petitioner is partly allowed quashing the proceedings against the petitioner/A6 in Crime No.278 of 2021 on the file of Jubilee Hills Police Station, Hyderabad insofar as the offences under Section 370 of IPC and Sections 3,4 & 5 of Immoral Traffic (Prevention) Act, 1956 are concerned. This Criminal Petition is dismissed insofar as the offence alleged against the petitioner/A6 under Section 370(A) (2) of IPC. The Investigating Officer in the above Crime is at liberty to conduct the investigation, except for the 9 Dr.CSL, J Crl.P.No.5807 of 2022 offences quashed against the petitioner/A6 as above, and file final report."
9. The Immoral Traffic (Prevention) Act, 1956 was enacted with an object to prevent immoral traffic and the said act is in pursuance of the International Convention dated 09.05.1950 that was signed at New York. Further Article 23 of the Constitution of India, prohibits traffic in human beings.
Section 3 of Immoral Traffic (Prevention) Act, 1956 prescribes punishment for keeping a brothel or allowing premises to be used as a brothel. Section 4 prescribes punishment for living on the earnings of prostitution. Likewise, Section 5 prescribes punishment for procuring, inducing or taking person for the sake of prostitution.
10. However, the word trafficking is no where defined in Immoral Traffic (Prevention) Act, 1956. But the meaning of the expression "trafficking" is defined under Section 370 of Indian Penal Code. The said provision is extracted as under:-
10
Dr.CSL, J Crl.P.No.5807 of 2022 Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by--
1. using threats, or
2. using force, or any other form of coercion, or
3. by abduction, or
4. by practicing fraud, or deception, or
5. by abuse of power, or
6. 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.
11. Section 370-A which was introduced subsequently, deals with exploitation of trafficked person. Clause (1) of the provision deals with trafficking a minor and Clause (2) deals with trafficking of others. The said provisions read as under:
(1) Whoever, knowingly or having reason to believe that a minor has been trafficked, engages such minor for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than five years, but which may extend to seven years, and shall also be liable to fine.
(2) Whoever, knowingly by or having reason to believe that a person has been trafficked, engages such 11 Dr.CSL, J Crl.P.No.5807 of 2022 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.
12. Therefore, it is clear that when any person knowingly and having reason to believe that a person is trafficked engages such person for sexual exploitation, is liable to be punished. A customer who had gone to the brothel house to satisfy his sexual lust can be prima facie presumed to have knowledge that the women present therein is engaged for the purpose of sexual exploitation. Thus, having knowledge about the said fact, indulging in the process of sexual exploitation squarely falls within the purview of Section 370-A IPC.
13. Whether the prosecution would be able to establish the said fact or not cannot be discussed or decided at this stage. However, the said provision of law squarely covers the alleged customers. The petitioner herein is undoubtedly figured to be a customer who went to the place where the 12 Dr.CSL, J Crl.P.No.5807 of 2022 raid was conducted and was found indulged in sexual transaction.
14. Therefore, this Court is of the view that the said provision attracts. As per the decision rendered by this Court in case between Naveen Kumar vs State of Telangana, that is referred supra, it is clear that the High Court exercising its inherent powers can direct the Court to take cognizance of the offence punishable under Section 370-A (II) IPC.
15. In the result, the criminal petition is disposed of as under:-
The proceedings that are pending against the petitioner/accused No.3 in PRC No. 191 of 2022 on the file of the Court of III Additional Metropolitan Magistrate, Hyderabad at Nampally, are quashed to the extent of the offences punishable under Section 3, 4 and 5 of Immoral Traffic (Prevention) Act, 1956.
However the learned Magistrate to take cognizance of 13 Dr.CSL, J Crl.P.No.5807 of 2022 the offence punishable under Section 370-A (2) IPC against the petitioner herein.
16. As a sequel, pending Miscellaneous Applications, if any, shall stand closed.
__________________________________ DR. CHILLAKUR SUMALATHA, J Date: 05.07.2022 Note: L.R. Copy to be marked.
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