Gujarat High Court
Vinod @ Vijay Bhagubhai Patel vs State Of Gujarat & on 5 May, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/8156/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 8156 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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VINOD @ VIJAY BHAGUBHAI PATEL....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR MAULIK NANAVATI for NANAVATI & CO., ADVOCATE for the Applicant(s)
No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR MITESH AMIN, PUBLIC PROSECUTOR with MS SHRUTI PATHAK, APP
for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 05/05/2017
CAV JUDGMENT
Page 1 of 24
HC-NIC Page 1 of 24 Created On Sat May 06 01:34:48 IST 2017 R/CR.MA/8156/2017 CAV JUDGMENT By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant - original accused seeks to invoke the inherent powers of this Court, praying for quashing of the First Information Report being I-CR No.4 of 2017 dated 3rd January 2017, registered with the Kadodara GIDC Police Station, Surat (Rural), for the offence punishable under Section 370 read with Section 114 of the Indian Penal Code and Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956.
The case of the prosecution may be summarised as under :
The Police Officer of the Kadodara GIDC Police Station received information on 3rd January 2017 about a brothel being run by few persons in Tatithaiya-I Park. A team of police officers along with the panch witnesses and a punter carried out a raid at the premises referred to above. In the course of the raid, one man and woman were found sitting in Room No.301. In Room No.310, the punter and a lady were found sitting. In Room No.311, four persons were found sitting. On inquiry, one person by name Vishal Ramprasad Yadav identified himself as the incharge of the building. The other person identified himself as Muzbir @ Rinku Rehman Shaikh. In addition to the persons referred to above who were running the brother, the applicant herein along with others was also found present. The applicant was one of the customers. In such circumstances, the FIR referred to above came to be registered against in all six persons including the applicant herein.
Mr.Maulik Nanavati, the learned counsel appearing for Page 2 of 24 HC-NIC Page 2 of 24 Created On Sat May 06 01:34:48 IST 2017 R/CR.MA/8156/2017 CAV JUDGMENT the applicant, vehemently submitted that his client being a customer cannot be prosecuted for the offence punishable under Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956. According to Mr.Nanavati, his client cannot be prosecuted even for the offence punishable under Section 370 of the Indian Penal Code.
It is submitted that Section 370 of the Indian Penal Code concerns recruiting, transporting, harbouring, transferring or receiving a person or persons for the purpose of exploitation.
According to Mr.Nanavati, a customer cannot be said to have recruited, transported, harboured, transferred or received the victim within the ambit of Section 370 of the Indian Penal Code. Mr.Nanavati submits that assuming for the moment that Section 370 of the Indian Penal Code is applicable to a customer, the same will have no application so far as the applicant is concerned because at best the applicant could be said to have prepared for the commission of the offence. The applicant was found sitting in the flat as a customer and was waiting for his turn to come. Before the applicant could come in actual contact with any girl, the raid was carried out and everyone was arrested.
In such circumstances referred to above, Mr.Nanavati prays that there being merit in this application, the same be allowed and the FIR be quashed so far as the applicant herein is concerned.
On the other hand, this application has been vehemently opposed by Mr.Mitesh Amin, the learned Public Prosecutor appearing for the State. According to Mr.Amin, more than a Page 3 of 24 HC-NIC Page 3 of 24 Created On Sat May 06 01:34:48 IST 2017 R/CR.MA/8156/2017 CAV JUDGMENT prima facie case could be said to have been made out against the applicant as he was caught red-handed by the police officers at the time of the raid. Whether the case is one of an attempt to commit an offence or preparation, is a subject matter of investigation and the same cannot be looked into by this Court at this stage.
Mr.Amin further submitted that Section 370 of the Indian Penal Code covers a 'customer'. According to Mr.Amin, in the wake of gang-rape of Nirbhaya in Delhi which created an unprecedented public furore, the Government considered it fit to drastically amend several provisions of the Indian Penal Code 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 panel laws like Indian Penal Code, Criminal Procedure Code, Evidence Act, etc. Consequent upon the said report, sub-clause (2) of Section 370 of the Indian Penal Code was amended and Section 370A of the Indian Penal Code was introduced.
According to Mr.Amin, having regard to the avowed object with which the report was submitted and the amendments and new provisions were introduced in several acts, it cannot be presumed for the moment that the Legislators considered a 'customer' as an innocent victim in the flesh trade. Therefore, according to Mr.Amin, Section 370 of the Indian Penal Code takes in its fold the customer also.
Mr.Amin, in support of his submissions, has placed reliance on one order passed by a learned Single Judge of the Page 4 of 24 HC-NIC Page 4 of 24 Created On Sat May 06 01:34:48 IST 2017 R/CR.MA/8156/2017 CAV JUDGMENT Andhra Pradesh High Court in the case of S.Naveen Kumar @ Naveen v. The State of Telangana, (Criminal Petition No.3158 of 2015, decided on 28th April 2015).
In such circumstances referred to above, Mr.Amin prays that there being no merit in this application, the same be rejected.
Having heard the learned counsel appearing for the parties and having considered the materials on record, two questions fall for my consideration. One, in the facts of the case, whether the applicant herein could be said to have committed an offence punishable under Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, and secondly, whether the applicant herein could be said to have committed an offence punishable under Section 370 of the Indian Penal Code.
To put it in other words, whether a customer at a brothel is covered under Section 370 of the Indian Penal Code.
Answering the first question is not difficult because the issue is no longer res integra. This Court, in the case of Umedsinh P.Champavat v. State of Gujarat, (2006)2 GLH 736, after placing reliance on an earlier decision of this very Court in the case of The State of Gujarat v. Bai Radha w/o Natwarlal Ramshankar and another, 9 GLR 278, held as under :
"9. Section 3 of the said Act provides punishment for keeping the brothel or allowing the premises to be used as brothel and on bare words of one of the co-accused, the petitioner could not have been prosecuted under this Act because as per the scheme of Section 3, it is obligatory on the part of the prosecution to show from evidence that the petitioner had kept brothel and he was Page 5 of 24 HC-NIC Page 5 of 24 Created On Sat May 06 01:34:48 IST 2017 R/CR.MA/8156/2017 CAV JUDGMENT responsible or liable for allowing a particular premises to be used as a brothel. When he was not there in the effective management of the hotel on the relevant date, no charge-sheet under Section 3 of the Act could have been filed against the present petitioner.
10. So far as as the offence punishable under Section 4 of the Act is concerned, it provides punishment for living on the earning of prostitution. Section says that any person over the age of 18 years who knowingly lives, wholly or in part, on the earnings of the prostitution ( of any other person) is said to have committed an offence under the Act. In view of the details given by the petitioner as to his business activities and involvement in hotel and resort business and other businesses like mining etc., it would not be proper for this Court to accept the say of ld. APP that there is prima facie evidence to show that the petitioner has committed offence punishable under Section 4 of the Act.
11. The petitioner has also been charged with the offence punishable under Section 5 of the Act which says that any person who -
(a) procures or attempts to procure a person, whether with or without his consent for the purpose of prostitution, or
(b) induces a person to go from any place with the intent that he/she may for the purpose of prostitution becomes the inmate of, or frequent, or 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/her carrying-on, or being brought upto carry-on prostitution, or
(d) causes or induces a person to carry on prostitution, shall be punishable under the Act.
It has been submitted that the evidence which has been collected by the investigating agency in the form of Statements of the co-accused and the so-called Page 6 of 24 HC-NIC Page 6 of 24 Created On Sat May 06 01:34:48 IST 2017 R/CR.MA/8156/2017 CAV JUDGMENT prostitutes, at least rules out applicability of clause (b),
(c) and (d) in toto. It is not even the case of the prosecution that the accused is said to have committed an offence under clause (b), (c) or (d). What is alleged is that the petitioner has procured or has attempted to procure a person for the purpose of prostitution. The question of Law which falls for consideration of the Hon'ble Court is as to whether a customer or a person who enjoys sex with a prostitution can be said to have procured a person for the purpose of prostitution.
(ii) The word "procures" used in this section connotes that somebody other than the petitioner should procure the woman for him. Section 5(i)(a) of the Act can be invoked only against the procurer like the agent or a pimp and not against persons like the petitioner because there is no allegation or the case that the petitioner was a person involved in procuring a woman. On the contrary, the case of the prosecution is that somebody else was procuring a woman or a girl and certain hotels were being used by them doing booking of rooms.
12. Ld. counsel Mr. Anandjiwala has drawn attention of this Court on the observations made by this Court in para-26 of the decision in the case of State of Gujarat v. Bai Radha, w/o Natvarlal Ramshankar & Another ( 9 GLR
261). It would be beneficial to quote the relevant para-26 which is as under:-
"26. Sec.5(1)(a) provides that any person who procures or attempts to procure a woman or girl, whether with or without her consent, for the purpose of prostitution, that person shall be punished as provided therein. In this respect also Mr. Nanavati's contention was that accused No.3 can be said to have procured a woman such as Bai Kanta for the purposes of prostitution to Kishan and that, therefore, he can be held liable for the offence under Section5(1)(a) of the Act. The word "procure"
is not defined under the Act,but we were referred to its dictionary meaning which says "To bring about by care or pains; also (more vaguely) to bring about, cause, effect, produce; to obtain by care or effort; to acquire; to obtain (women) for the Page 7 of 24 HC-NIC Page 7 of 24 Created On Sat May 06 01:34:48 IST 2017 R/CR.MA/8156/2017 CAV JUDGMENT gratification of lust; to prevail upon, induce, persuade (a person) to do something." Giving the normal meaning to the use of the word "procure" in clause (a) of sub-section (1) of Section 5, what is required is only that he must have obtained a woman or a girl for the purpose of prostitution for a particular individual."
Mr. Anandjiwala has placed emphasis on words "obtain a woman or a girl for the purpose of prostitution for a particular individual" and it is argued that from these observations made, it is sufficiently clear that Section 5(i)
(a) of the Act would not be attracted at all in the present case so far as the present petitioner is concerned.
13. The petitioner is also charged with the offence under Section 7 of the Act. Section 7 of the Act makes the prostitution in or in the vicinity of public places an offence. Firstly, the prostitution in itself is not an offence under the Act, save in the manner given in Sections 7 and 8. Firstly, the petitioner by any stretch of imagination cannot be charged with this offence under Section 7 of the Act because to attract the said section, the prosecution must prima facie show that the petitioner is carrying on prostitution. It is only when the first ingredient is satisfied then the question would be as to whether the prostitution is being carried out in or in the vicinity of public place. When Section 3 of the Act is not applicable, when Section 4 of the Act is not applicable to the present petitioner, there is no question of charging the accused with the offence punishable under Section 7 of the Act. When no formal raid was carried out at Hotel Taj Residency Umed and no part of the premises of the said hotel was found in actual use of such illegal activities, it would not be legal to continue the prosecution against the petitioner for using the public place for the activities of prostitution.
14. Section 9 of the said Act, on the face of it, is not applicable in the facts and circumstances of the present case. For attracting Section 9 of the Act, it has to be shown prima facie that the petitioner having position or authority over any person, i.e. a woman or girl causes or aids or abets the seduction for prostitution of that woman Page 8 of 24 HC-NIC Page 8 of 24 Created On Sat May 06 01:34:48 IST 2017 R/CR.MA/8156/2017 CAV JUDGMENT or girl. The question again, at the cost of repetition, is the petitioner's position or authority over any such woman or girl. There is not a thread of any evidence even to remotely suggest that the petitioner taking undue advantage of his position or authority over any woman or girl, caused or aided or abetted the seduction for prostitution of that woman or girl.
15. Undisputedly, powers of this Court under Section 482 of CrPC are very wide. It is true that the same should be used sparingly and in rare case, where it is apparent from record that the prosecution has no case. The discretion for quashing the complaint or charge-sheet must be carefully used and the High Court must see that its decision in exercise of its power is based on sound principles. As per the settled legal position, as observed by the Apex Court, if FIR fails to disclose the commission of offence without anything being added or subtracted from recitals therein then the High Court would be absolutely justified in quashing the FIR or the charge- sheet. In the present case, there is no legal evidence against the petitioner and, therefore, quashing of the FIR and the charge-sheet would be justified. The Court is also supposed to consider the nature of allegations made more particularly in the case which has been put forward against the petitioner accused. The Court is in agreement with the say of ld. counsel Mr.Anandjiwala that the ratio of the decision in the case of Bai Radha (supra) would help the petitioner and even on facts, it emerges that the prosecution instituted against the present petitioner is not even healthy one. Totally illegal implication in the offence is equal to a false implication and for such an act, the prosecuting officer/agency can be held liable for malicious prosecution. But this exercise has to be made by the person falsely implicated before the competent forum in accordance with law. The petitioner is entitled to do it."
In view of the above, I hold that the prosecution of the applicant herein for the offence under the Immoral Traffic (Prevention) Act is not maintainable. The applicant herein cannot be said to have procured a woman for the purposes of prostitution.
Page 9 of 24HC-NIC Page 9 of 24 Created On Sat May 06 01:34:48 IST 2017 R/CR.MA/8156/2017 CAV JUDGMENT The above takes me to consider the second question.
Before I proceed to answer the second question, I must look into the provisions of Section 370 of the Indian Penal Code. Section 370 of the Indian Penal Code reads as under :
"Section 370 of the Indian Penal Code: (1) 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 practising 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.
Explanations
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.
2. The consent 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.
Page 10 of 24HC-NIC Page 10 of 24 Created On Sat May 06 01:34:48 IST 2017 R/CR.MA/8156/2017 CAV JUDGMENT (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, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine."
Prior to substitution by Section 8 of the Criminal Law (Amendment) Act, 2013 (w.e.f. 3.2.2013), Section 370 stood as under :
"Section 370. Whoever imports, exports, removes, buys, sells or disposes of any person as a slave, or accepts, receives or detains against his will any person as a slave, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Amendment of 2013. - Vide the Criminal Law (Amendment) Act 2013 (Act 13 of 2013), the entire section has been changed so as to enlarge the scope of the offence and include within its purview not just the mischief of slavery, but trafficking in general - of minors as also adults, and also forced Page 11 of 24 HC-NIC Page 11 of 24 Created On Sat May 06 01:34:48 IST 2017 R/CR.MA/8156/2017 CAV JUDGMENT or bonded labour, prostitution, organ transplantation and to some extent child-marriages.
For the purposes of this new offence, an offender has been classified into 5 categories, thus covering every aspect of the commission of such offences. A person can be held liable within the mischief of this offence if he either (i) recruits, or (ii) transports, (iii) harbours, (iv) transfers, or (v) receives, a person or persons.
'Exploitation', meaning of. - The purposes of exploitation is at the core of this new offence of trafficking. As defined herein, this exploitation can be deciphered from either of the following course of conduct -
(i) use of threats upon the victim who is being trafficked;
(ii)use of force, or any other form of coercion upon the victim who is being trafficked;
(iii) by means of abduction of the victim who is being trafficked;
(iv) by practising fraud, or deception upon the victim who is being trafficked;
(v)by abuse of power upon the victim who is being trafficked;
(vi) by inducement of the victim who is being trafficked, 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.
Explanation (1) added to this section, further addes to the meaning of 'exploitation' any act of physical exploitation or Page 12 of 24 HC-NIC Page 12 of 24 Created On Sat May 06 01:34:48 IST 2017 R/CR.MA/8156/2017 CAV JUDGMENT any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.
Consent of victim.-Explanation (2) ousts the possibility of an accused taking the defence of consent of victim to any act of physical exploitation or other form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.
Thus, the plain reading of Section 370 of the Indian Penal Code makes it clear that the same has been enacted by the Legislature with the avowed object of preventing sexual exploitation of a girl or woman. The provision makes it very clear that whoever, for the purpose of exploitation, recruits, transports, harbours, transfers or receives any girl or woman for the purpose of sexual exploitation, such person is guilty of the offence under Section 370 of the Indian Penal Code. The provision also makes it very clear that the consent of the victim is not material in determination of the offence of traffic. The expression 'exploitation' includes any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.
I find it extremely difficult to take the view that a customer at a brothel is not covered within the provision of Section 370 of the Indian Penal Code. A customer at a brothel could be said to receive the victim. I see no good reason why the customer should be kept out of Section 370 of the Indian Penal Code.
However, I should sound a note of caution at this stage. I Page 13 of 24 HC-NIC Page 13 of 24 Created On Sat May 06 01:34:48 IST 2017 R/CR.MA/8156/2017 CAV JUDGMENT am dealing with a very important issue and this judgment may have its own implication. At this stage, my attention is drawn by Mr.Nanavati, the learned counsel appearing for the applicant, to a clarification issued by Justice Verma Commission on the intent of Section 370 of the Indian Penal Code.
The clarification was sought in the following words :
"Dear Ms.Seshu The Committee, in its report of January 23, 2013, proposed certain amendments to Section 370, IPC, to introduce a definition of the offence of 'trafficking' into the IPC and the punishment thereof. The Committee also notes that the Ministry of Law and Justice, Government of India, by way of the Criminal Law (Amendment) Ordinance, 2013 ('Ordinance'), dated February 3, 2013, has amended Section 370 of the IPC in terms of the Committee's recommendations.
The Committee, however, notes your representation on behalf of the National Network of Sex Workers to the effect that the Section 370, IPC, after being amended by the Ordinance, could be misused by police and other governmental authorities to harass (i) sex workers who engage in prostitution of their own volition, and not pursuant to inducement, force or coercion, as the amended Section 370 provides, and (ii) the clients of such sex workers, by bringing the act of gratification for a sex worker's services under the scope of the amended Section 370.
The members of the Committee wish to clarify that the thrust of their intention behind recommending the amendment to Section 370 was to protect women and children from being trafficked. The Committee has not intended to bring within the ambit of the amended Section 370 sex workers who practice of their own volition. It is also clarified that the recast Section 370 ought not to be interpreted to permit law-enforcement agencies to harass sex workers who undertake activities Page 14 of 24 HC-NIC Page 14 of 24 Created On Sat May 06 01:34:48 IST 2017 R/CR.MA/8156/2017 CAV JUDGMENT of their own free will, and their clients. The Committee hopes that law enforcement agencies will enforce the amended Section 370, IPC, in letter and in spirit.
Yours sincerely Abhishek Tewari Advocate Counsel to the Committee"
The clarification dated 8th February 2013 reads as under :
"This is to express our concern at the ambiguous manner in which the term "prostitution" has been used in Section 370 IPC of the Verma Committee Report. In this section, which deals with the offence of Trafficking of Persons, the term "exploitation" includes "prostitution" itself. This in essence means that "prostitution" will now be interpreted as exploitation. This problematic formulation has now been incorporated into the recently passed Ordinance.
Section 370 IPC criminalizes people in sex work since it does not differentiate between "coercive prostitution"
and prostitution; nor does it talk about the "exploitation of prostitution".
Section 370 IPC was introduced to criminalize trafficking in persons and by and large uses the language of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children (2000). However, comparing the language under both reveals a highly significant difference in the definition of "exploitation".
- While The UN Protocol which India ratified in 2011defines "exploitation: as: "Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;...":
- Under Section 370 IPC "exploitation" is defined as: "The expression "exploitation" shall include, prostitution or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, Page 15 of 24 HC-NIC Page 15 of 24 Created On Sat May 06 01:34:48 IST 2017 R/CR.MA/8156/2017 CAV JUDGMENT servitude, or the forced removal of organs."
This significant difference potentially criminalizes the practices around sex work. By introducing the language of prostitution itself as exploitation, the amendment endangers sex workers instead of protecting them from sexual exploitation.
The learned members of the Verma Committee will concur that legislative framework that criminalizes prostitution as exploitation, drives the practice underground and renders the already vulnerable sex worker more vulnerable to violence, exposure to HIV and deepens the lack of legal remedy to redress violence. We also draw your attention to the decision of the Hon'ble Supreme Court (Cr Ap. 135/ 2010, 14 February 2011), where the right to dignity of women in prostitution was upheld.
The formulation in the Ordinance is a setback to sex workers who are fighting for legal and societal recognition of their fundamental rights to dignity and pursuit of a livelihood. Instead, criminalization, which is the fallout of the Ordinance, will create conditions for increased abuse of sex workers, especially by the police and others in positions of power and authority.
We request you to clarify that your intention was not to criminalize the lives of sex-workers but rather to criminalize only those who 'exploit the prostitution of others' i.e. traffickers in persons. We hope that this crucial clarification by the Committee will aid Parliament in bringing about the necessary changes in the provision so that the vulnerable sex worker is protected and not made the subject of criminal sanctions."
Thus, it appears that Section 370 of the Indian Penal Code will have no application in a case wherein the sex workers engaged in prostitution of their own volition, and not pursuant to any inducement, force or coercion. This would be a question of fact and a subject matter of investigation. It is for the Investigating Officer to consider, whether the sex workers Page 16 of 24 HC-NIC Page 16 of 24 Created On Sat May 06 01:34:48 IST 2017 R/CR.MA/8156/2017 CAV JUDGMENT had engaged themselves in prostitution of their own volition or they were victims of sexual exploitation as explained by Section 370 of the Indian Penal Code.
I shall now deal with the contention that the applicant at best could be said to have made preparation for the commission of the offence.
As stated above, so far as the applicant is concerned, he was arrested much before his turn came. It is a subject matter of investigation, whether the deal was struck between the applicant and the persons who were running the brothel. It is also a subject matter of investigation, whether any amount was already paid by the applicant. It is true that the purpose with which he had visited the brothel could not be served as he was not found to be in company of any victim.
In the aforesaid context, let me explain the fine distinction between an attempt and preparation. The Supreme Court, in the case of Abhayanand Mishra v. State of Bihar, AIR SC 1698, has exhaustively explained the distinction between 'preparation to commit a crime' and an 'attempt to commit'. I may quote the relevant observations thus :
"18. In Queen v. Paterson (1) the publication of banns of marriage was not held to amount to an attempt to commit the offence of bigamy under s.494, Indian Penal Code. It was observed at p. 317:
"The publication of banns may, or may not be, in cases in which a special license is not obtained. a condition essential to the validity of a marriage, but common sense forbids us to regard either the publication of the banns or the procuring of the license as a part of the Page 17 of 24 HC-NIC Page 17 of 24 Created On Sat May 06 01:34:48 IST 2017 R/CR.MA/8156/2017 CAV JUDGMENT marriage ceremony."
The distinction between preparation to commit a crime and an attempt to commit it was indicated by quoting from Mayne's Commentaries on the Indian Penal Code to the effect:
"Preparation consists in devising or arranging the means or measures necessary for the commission of the offence; the attempt is the direct movement towards the commission after the preparations have been made."
19. In Regina v. Padala Venkatasami, ILR 3 Mad 4, the preparation of a copy of an intended false document, together with the purchase of stamped paper for the purpose of writing that false document and the securing of information about the facts to be inserted in the document, were held not to amount to an attempt to commit forgery, because the accused had not, in doing these acts, proceeded to do an act towards the commission of the offence of forgery.
20. In the matter of the petition of Riasat Ali, ILR 7 Cal 352, the accused's ordering the printing of one hundred receipt forms similar to those used by a company and his correcting proofs of those forms were not held to amount to his attempting to commit forgery as the printed form would not be a false document without the addition of a seal or signature purporting to be the seal or signature of the company. The learned Judge observed at p. 356:
"........... I think that he would not be guilty of an attempt to commit forgery until he had done some act towards making one of the forms a false document. If, for instance, he had been caught in the act of writing the name of the Company upon the printed form and had only completed a single letter of the name, I think that he would have been guilty of the offence charged, because (to use the words of Lord Blackburn) 'the actual transaction would have commenced, which would have ended in the crime of forgery, if not interrupted'."
The learned Judge quoted what Lord Blackburn said in Page 18 of 24 HC-NIC Page 18 of 24 Created On Sat May 06 01:34:48 IST 2017 R/CR.MA/8156/2017 CAV JUDGMENT Reg. v. Chessman, (1862) Lee and Cave's Rep 140 at p.145:
"There is no doubt a difference between the preparation antecedent to an offence and the actual attempt; but if the actual transaction has commenced, which would have ended in the crime if not interrupted, there is clearly an attempt to commit the crime."
He also quoted what Cockburn, C. J., said in M'Pherson, 1857 Dears and B 197 at p.202 :
"The word 'attempt' clearly conveys with it the idea, that if the attempt had succeeded, the offence charged would have been committed. An attempt must be to do that which, if successful, would amount to the felony charged."
21. It is not necessary for the offence under s.511, Indian Penal Code, that the transaction commenced must end in the crime or offence, if not interrupted.
22. In In re: Amrita Bazar Patrika Press Ltd. Mukherjee, J., said at p. 234:
"In the language of Stephen (Digest of Criminal Law, Art. 50), an attempt to commit a crime is an act done with an intent to commit that crime and forming part of a series of acts which would constitute its actual commission if it were not interrupted. To put the matter differently, attempt is an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime; in other words, an attempt consists in the intent to commit a crime, combined with the doing of some act adapted to, but falling short of, its actual commission; it may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted: Reg. v. Collins, (1864)9 Cox, Page 19 of 24 HC-NIC Page 19 of 24 Created On Sat May 06 01:34:48 IST 2017 R/CR.MA/8156/2017 CAV JUDGMENT 497"
23. This again is not consistent with what is laid down in s.511 and not also with what the law in England is.
24. In Stephen's Digest of Criminal Law, 9th Edition, attempt' is defined thus:
"An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts, which would constitute its actual commission if it were not interrupted.
The point at which such a series of acts begins cannot be defined; but depends upon the circumstances of each particular case. An act done with intent to commit a crime, the commission of which in the manner proposed was, in fact, impossible, is an attempt to commit that crime.
The offence of attempting to commit a crime may be committed in cases in which the offender voluntarily desists from the actual commission of the crime itself."
In In re: T. Munirathnam Reddi (1) it was said at p. 122:
"The distinction between preparation and attempt may be clear in some cases, but, in most of the cases, the dividing line is very thin. Nonetheless, it is a real distinction.
The crucial test is whether the last act, if uninterrupted and successful, would constitute a crime. If the accused intended that the natural consequence of his act should result in death but was frustrated only by extraneous circumstances, he would be guilty of an attempt to commit the offence of murder. The illustrations in the section (s. 511) bring out such an idea clearly. In both the illustrations, the accused did all he could do but was frustrated from committing the offence of theft because the article was removed from the jewel box Page 20 of 24 HC-NIC Page 20 of 24 Created On Sat May 06 01:34:48 IST 2017 R/CR.MA/8156/2017 CAV JUDGMENT in one case and the pocket was empty in the other case."
The observations 'the crucial test is whether the last act, if uninterrupted and successful, would constitute a crime' were made in connection with an attempt to commit murder by shooting at the victim and are to be understood in that context. There, the nature of the offence was such that no more than one act was necessary for the commission of the offence.
26. We may summarise our views about the construction of s.511, Indian Penal Code, thus: A personal commits the offence of 'attempt to commit a particular offence' when
(i) he intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence."
The Investigating Officer shall bear in mind the proposition of law explained in the aforesaid decision of the Supreme Court and undertake the investigation accordingly.
Let me look into the order passed by the Andhra Pradesh High Court in the case of S.Naveen Kumar @ Naveen (supra) relied upon by Mr.Amin. In the said case, the petitioner was arrested as a customer. It was argued on behalf of the petitioner that he being only a customer and not an organizer of a brothel house or pimp, was not liable to be prosecuted or charged under Section 370A of the Indian Penal Code. The learned Single Judge held as under :
"6 a) POINT: Admittedly, petitioner/A3 is a customer in the flesh trade. He was charge sheeted for the offence under Section 4 of PIT Act. Section 4 reads thus:Page 21 of 24
HC-NIC Page 21 of 24 Created On Sat May 06 01:34:48 IST 2017 R/CR.MA/8156/2017 CAV JUDGMENT Section 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 both2[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 he 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 meaning of sub-section (1).
As rightly argued, Section 4 basically deals with the persons who lives on the earnings of the prostitution. Therefore, there is any amount of force in the submission of learned counsel for petitioner that a customer to flesh trade cannot be treated as offender under Section 4 of PIT Act. This aspect was no more res integra since atleast two judgments of this High Court i.e. Goenka Sajan Kumar vs. The State of A.P. and Z. Lourdiah Naidu vs. State of Andhra Pradesh establish the same. Therefore, criminal proceedings against the petitioner/A3 for the offence under Section 4 of PIT Act are no doubt liable to be quashed.
b) However, that is not end of the matter. A perusal of the charge sheet would show that the police while charge sheeting A1 and A2 for the offences under Sections 3, 4, 5 and 6 of PIT Act and under Section 370A IPC, Page 22 of 24 HC-NIC Page 22 of 24 Created On Sat May 06 01:34:48 IST 2017 R/CR.MA/8156/2017 CAV JUDGMENT surprisingly charge sheeted petitioner/A3 only under Section 4 of PIT Act, but not under Section 370A IPC. Section 370A IPC reads thus:
Section 370A - Exploitation of a trafficked person (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 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.
c) The phraseology engages such minor/such person for sexual exploitation in any manner employed in sub-
sections (1) and (2) of Section 370A IPC in clear terms indicates that the flesh customer who hires the victim woman for sexual exploitation also falls within the fold of Section 370A as an offender.
d) 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 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 Page 23 of 24 HC-NIC Page 23 of 24 Created On Sat May 06 01:34:48 IST 2017 R/CR.MA/8156/2017 CAV JUDGMENT 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."
In the aforesaid view of the matter, this application is partly allowed. The First Information Report being I-CR No.4 of 2017 dated 3rd January 2017 registered with the Kadodara GIDC Police Station, Surat (Rural), is quashed so far as Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956, is concerned. So far as the offence under Section 370 of the Indian Penal Code is concerned, the Investigating Officer shall complete the investigation in accordance with law keeping in mind the observations made by this Court in this judgment and order.
Direct service is permitted.
(J.B.PARDIWALA, J.) MOIN Page 24 of 24 HC-NIC Page 24 of 24 Created On Sat May 06 01:34:48 IST 2017