Telangana High Court
Gangasani Anil Reddy Another vs The State Of Telangana on 21 September, 2022
Author: D.Nagarjun
Bench: D.Nagarjun
THE HON'BLE DR. JUSTICE D.NAGARJUN
CRIMINAL PETITION No.7219 of 2016
ORDER:
This petition is filed by the petitioners/A2 and A3 in PRC.No.63 of 2015 in Crime No.1027 of 2015 on the file of VII Metropolitan Magistrate, Cyberabad at Hayathnagar, Hyderabad, to quash the charge sheet filed against them, which was taken cognizance for the offence under Section 370(A)(2) IPC and Sections 3 and 4 of the Prevention of Immoral Traffic Act, 1956 (for short, "the Act").
The facts in brief as per the charge sheet are that on 16.12.2015 at 6.30 p.m., A1, who is not before the Court, was running a brothel house allowing the premises to be used as brothel for earning money through prostitution. The petitioners have participated in the prostitution with the victims. The police have surprised the premises/plot bearing No.15, near graveyard, venkateshwara Nagar, Injapur Village, Ranga Reddy District along with the mediators and found the petitioners along with the victims. A1-Rajeshwari has confessed that she came to Hyderabad and took the premises for running brothel house for monthly rent of Rs.2,500/-. She has engaged the victims and started bringing the customers for doing 2 prostitution. On the day of raid, A1 has called both the petitioners/customers to have sexual pleasure with the victims by taking money. A panchanama was conducted in the presence of mediators and Maruthi Alto Car bearing No.AP 24 AD 5999 and a mobile phone was seized from A1/Rajeshwari, who is not before the Court, and also seized splendor Plus Bike bearing No.AP 29 BQ 7092 and Micromax mobile from Anil Reddy and Micromax and Samsung mobile phones from Prakash Reddy and 11 condoms.
Basing on the scene of offence panchanama, a case in Crime No.1027 of 2015 was registered and took cognizance of the same for the offence under Section 370(A)(2) IPC and Sections 3 and 4 of the Act. Aggrieved by the same, the petitioners have filed this petition seeking quashment on the following grounds:
Learned counsel for the petitioners submitted that Section 3 of the Act is not applicable to the petitioners and that in similar circumstances, this Court has quashed criminal case in Crl.P.No.12608 of 2015, dated 01.12.2015 and many such other petitions.3
Heard Sri B. Shiva Kumar, learned counsel for the petitioners, and Sri S. Ganesh, learned Assistant Public Prosecutor for the respondent/State.
The petitioners are charged with for the offences under Section 370(A)(2) IPC and Sections 3 and 4 of the Act.
Section 3 deals with punishment for keeping a brothel or allowing premises to be used as a brothel. According to the prosecution, the petitioners herein are the customers. A1 has taken the said premises on rent for running the brothel house. Therefore, Section 3 of the Act cannot be fastened against the petitioners.
Similarly, Section 4 of the Act deals with punishment for living on the earnings of prostitution. The petitioners are the customers, who, as per the prosecution, have come there to have sexual pleasure by paying money. Therefore, the petitioners are not living on the earnings of the prostitution. Hence, Section 4 of the Act also not applicable to the petitioners.
It is the case of the prosecution that A1 has procured the victims and put them in the brothel house and searched for customers and collected money from those, who have sexual intercourse with the victims. Therefore, it is no where alleged in 4 the charge sheet that the petitioners have either procured or involved in the procurement or attempted to procure the victims for the purpose of prostitution. Therefore, even this offence is also not attracted.
This Court while considering similar facts in Crl.P.No.2976 of 2022 dated 06.06.2022 has held that a customer is not liable. In Padala Venkata Sai Rama Reddy vs. State of Andhra Pradesh and another1, a learned Judge of the High Court of Andhra Pradesh while dealing with similar issue has held as under:
"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. In Z. Lourdiah Naidu v. State of A.P. (2013 (2) ALD (Crl.) 393 (A) it is held (in para 6 and 7), "Section 4 of the Act would be attracted only if a person knowingly lives on the earning of the prostitution of any other person. The activity carried out in a given premises will amount to prostitution within the meaning of Section 2 of the Act only if sexual abuse by exploitation of the person is done for commercial purpose. Section 4 of the Act does not punish or make the person liable for the acts done by the person who is running the brothel house. The section does not make the person, who carries on prostitution for her own gain, liable for punishment, so also the person who is running the said premises. This section is meant to punish those persons who are living on the earnings of the prostitute......" Similarly, in Goenka Sajan Kumar v. The State of A.P. (2014 (2) ALD (Crl.) 264, it is held (in para 5) "None of these sections speak about punishment to the customer of a brothel house..."
1 2022 (1) ALD (Crl.) 92 (AP) 5 Therefore, in view of the above authorities and considering the discussion made above, the petitioners cannot be made liable for the offences under Sections 3 and 4 of the Act.
However, so far as Section 370(A)(2) IPC is concerned, even though the learned counsel for the petitioners have submitted that Section 370(A)(2) IPC is also not attracted, having gone through the provisions of Section 370(A)(2) IPC and applied the same with the facts of the case, it is clear that the petitioners cannot escape from the prosecution for the offence under Section 370(A)(2) IPC, which runs as under:
"370-A. 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."
In the case on hand, the petitioners, as per the prosecution version, went to the brothel house, paid money to A1 to have a sexual pleasure with the victims and had sexual intercourse.
6
On going through the contents of the charge sheet, it is clear that the petitioners/A2 and A3 being the customers/pimps are aware of the fact that the victims were trafficked for sexual exploitation and they have exploited them by paying money. Therefore, there are ingredients to consider that the petitioners have committed the offence under Section 370(A)(2) IPC and hence, the prosecution shall proceed to charge the petitioners for the offence under Section 370(A)(2) IPC.
In view of the above discussion, the criminal petition is allowed in part so far as the offence under Sections 3 and 4 of the Act is concerned and dismissed so far as the offence under Section 370(A)(2) IPC.
Miscellaneous applications, if any, shall stand closed.
_____________________ DR. D.NAGARJUN, J Date: 21.09.2022 ES