Telangana High Court
Gopal Gupta vs The State Of Telangana on 6 June, 2022
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.3359 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.94 of 2022 on the file of III Additional Metropolitan Magistrate, Hyderabad at Nampally.
2. The petitioner herein is arraigned as accused No.4 in the said PRC. The offences alleged against him are under Sections - 3, 4 and 5 of the Prevention of Immoral Traffic Act, 1956 (for short 'PITA').
3. Heard Mr. M.S. Achyuth Bharathwaj, learned counsel for the petitioner and the learned Assistant Public Prosecutor appearing on behalf of respondents - State.
4. In the charge sheet, it is alleged that accused Nos.1 to 3 are running a brothel house at Happi Thai Spa in the 3rd floor of H.No.8-2-681/BA/B1/302, situated at Road No.12, Banjara Hills, Hyderabad by procuring sex workers, LWs.2 to 9 through Just dial 2 KL,J Crl. P No.3359 of 2022 and customers through Google by keeping office numbers and earning illegal income.
i) It is also alleged that accused Nos.1 and 2 used to talk with customers as per the instructions of accused No.3 and arrange massage and sex workers to participate sex with customers by luring them that they would pay huge money. Accused No.1 used to pay Rs.12,000/- to Rs.15,000/- per month for doing Spa massage and if they participate sex with customers they used to collect Rs.2,000/- from each customer and used to pay Rs.1,000/- to them per customer. The petitioner herein and accused No.5 came to the said Spa and Saloon for Thai massage by contacting office mobile number, which was kept in Google, to participate sex with sex workers. Meanwhile, on receipt of credible information, LW.1 along with LWs.14 to 18 and the mediators, LWs.12 and 13 raided the said premises on 08.03.2022 at about 1845 hours and apprehended the petitioner and accused Nos.1 to 3 and 5 and also rescued the victims / sex workers, LWs.2 to 9. LW.1 recorded the confessional statement of the accused and the petitioner herein and 3 KL,J Crl. P No.3359 of 2022 seized the mobile phones and unused condoms from the possession of accused No.1.
5. Mr. M.S. Achyuth Bharthwaj, learned counsel for the petitioner, referring to the contents of the charge sheet, would submit that the petitioner never committed the offences as alleged in the charge sheet. The petitioner is innocent of the offences alleged against him. The contents of the charge sheet lack the ingredients of the offences alleged against the petitioner herein.
i) Learned counsel would also submit that the petitioner went to the aforesaid Spa only for the purpose of massage services and he did not know about the prostitution was being held at the said Spa. 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 are specific allegations against the petitioner herein. The petitioner was present in the said Spa Centre on the date when raid was conducted and therefore, he is a customer. He would further submit that though the contents of the charge sheet lack the ingredients of Sections - 3, 4 and 5 of the 4 KL,J Crl. P No.3359 of 2022 PITA lack, but the same would constitute an offence under Section
- 370A (2) of IPC. Whether the petitioner is innocent of the offences alleged and that he went to the said Spa Centre for massage services etc, are all triable issues which are to be tried and decided only after full-fledged trial, but cannot be considered in a petition under Section - 482 of the Cr.P. The Investigating Officer after recording the statements of the witnesses and after collecting the material only filed the charge sheet and, therefore, he sought to dismiss the present petition. He has also placed reliance on the principle laid down by the High Court for the States of Telangana and Andhra Pradesh in Naveen Kumar v. The State of Telangana1.
7. In view of the said rival submissions, the undisputed facts are that the petitioner herein is accused No.4 in the aforesaid PRC. It is also not in dispute that on 08.03.2022 when a raid was conducted at the aforesaid Spa Centre, the petitioner herein was found there. In view of the same and even as per the contents of the charge sheet, the petitioner herein is a customer. 1 . 2015 (2) ALD (Crl.) 156 (AP) 5 KL,J Crl. P No.3359 of 2022
8. In view of the rival submissions, it is apt to refer to the provisions of Section - 370 (A) of 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."
PIT ACT "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 6 KL,J Crl. P No.3359 of 2022 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 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 7 KL,J Crl. P No.3359 of 2022 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 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; 8
KL,J Crl. P No.3359 of 2022 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 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 Sections - 3, 4 and 5 of the PITA. A customer to flesh trade cannot be treated as an offender under Sections - 3, 4 and 5 of PITA. There is no allegation against the petitioner herein that he has 9 KL,J Crl. P No.3359 of 2022 recruited, transported, harboured, transferred or received a person for the purpose of exploitation. In Mohammad Riyaz v. The State Of Telangana2, the High Court for the States of Telangana and the Andhra Pradesh referring to the principle laid down in S. Naveen Kumar1 relied upon by the learned counsel for the petitioner 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 with 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 ingredients of Section Sections - 3, 4 and 5 of the PITA, however, the Court below may go on trial for the offence under Section - 370 (A) (2) of the IPC against the petitioner herein.
10. In view of the above discussion, the proceedings in P.R.C. No.94 of 2022 on the file of III Additional Metropolitan Magistrate, Hyderabad at Nampally, are hereby quashed against 2 . Criminal Petition No.5803 of 2018, decided on 27.06.2018 10 KL,J Crl. P No.3359 of 2022 the petitioner herein - accused No.4 for the offences under Sections
- 3, 4 and 5 of the PITA. However, the Court below may go on trial for the offence under Section - 370A (2) of the IPC against the petitioner herein - accused No.4.
11. The present Criminal Petition is accordingly allowed in part to the above extent.
As a sequel thereto, Miscellaneous Petitions, if any, pending in the Criminal Petition stand closed.
____________________ K. LAKSHMAN, J th 6 June, 2022 Mgr