Telangana High Court
Dandi Venkat vs The State Of Telangana on 9 July, 2024
THE HONOURABLE SMT. JUSTICE K. SUJANA
CRIMINAL PETITION No.7436 of 2024
ORDER:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') by the petitioner/accused, to quash the proceedings against him in Crime No.174 of 2024 on the file of Nizamabad III Town Police Station, Nizamabad, registered for the offences punishable under Section 370(A)(2) of the Indian Penal Code (for short 'IPC') and Sections 3, 4 of the Immoral Traffic (Prevention) Act (for short 'the Act').
2. The brief facts of the case are that on 27.06.2024, at about 19:30 hours, on receiving credible information about running of brothel house at H.No.6-2-185, Subashnagar, Nizamabad, the Police raided the said premises and noticed that with intention to earn money in ease manner, accused No.1 procured the victim women for participating in illicit in sexual intercourse with the customers by offering attractive amounts. It is stated that on 27.06.2024 accused No.2 went to the said 2 SKS,J Crl.P.No.7436 of 2024 premises for illicit sexual intercourse and found with the victim woman at the said premises. As such, accused Nos.1 and 2 along with the victim women have been taken into custody and seized cash and mobile phones. Based on the complaint, a case was registered vide Crime No.174 of 2024 before the Nizamabad III Town Police.
3. Heard Sri N.Manohar, learned Counsel for the Petitioner and Sri Arun Kumar Doddla, learned Additional Public Prosecutor for respondent No.1-State.
4. Learned counsel for the petitioner submitted that since the petitioner/accused No.2 is a customer, the offences under Section 370(A)(2) of IPC and Sections 3, 4 of the Act are not applicable. Hence, he prayed the Court to allow the Criminal Petition by quashing the proceedings against the petitioner/accused No.2.
5. On the other hand, learned Additional Public Prosecutor for respondent No.1-State opposed the submissions of the learned counsel for the petitioner stating that the presence of the petitioner was clearly found by the Police at the scene of offence 3 SKS,J Crl.P.No.7436 of 2024 and was taken into custody. He further submitted that according to the prosecution, this petitioner is also alleged for the offence under Section 370(A)(2) of IPC as the petitioner is the customer and placed reliance on the order of this Court in Thanna Bharagav Kumar Vs State of Telangana 1. Therefore, he prayed the Court to dismiss the Criminal Petition.
6. For better appreciation of the facts of the instant case, it is apt to refer Sections 370 and 370(A)(2) of IPC, which reads as follows:
"370. Trafficking of person.--(1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by-- First --using threats, or Secondly --using force, or any other form of coercion, or Thirdly --by abduction, or Fourthly --by practising fraud, or deception, or Fifthly -- by abuse of power, or Sixthly -- 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.
Explanation 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.
Explanation 2.--The consent of the victim is immaterial in determination of the offence of trafficking.
(2) Whoever commits the offence of trafficking shall be 1 crl.P.No.5999 of 2022 4 SKS,J Crl.P.No.7436 of 2024 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."
"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."
7. In judgment of this Court in Thanna Bhargav Kumar (Supra) at paragraph Nos.11 and 13 held as under:
"11. Thus, by the above provisions, it is clear that whoever knowingly or having reason to believe that a minor or a person has been trafficked, engages such minor or person for sexual exploitation, shall be punished.
13. In the case on hand, the acts committed by the petitioner-Accused No.4 as per the contents of charge sheet squarely fall within the ambit of Section 370-A (ii) IPC. Therefore, this Court is of the view that the proceedings for the said offence are liable to be continued. No other ground is urged or established by the petitioner basing on which the proceedings can be quashed. Therefore, this Court considers it desirable to allow this criminal petition in part."5
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8. In judgment of this Court in Dasari Venkatappaiah vs the State of Telangana 2 at paragraph Nos.7 to 9 held as under:
"7. Section 370(A)(2) of IPC deals with exploitation of a trafficked person. As per it, whoever, knowingly by or having person 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.
8. As discussed above, the only allegation against the petitioner/A5 is that he has information from A1 and A4 with regard to availability of victims for the purpose of exploitation sexually, he went to Dolphin Hotel, and exploited the victim sexually. Thus, he is a customer.
9. In view of the above, this Court is prima facie of the opinion that the contents of the complaint as well as the remand report constitute the offence under Section 370(A)(2) of IPC, and as discussed above, the offences under Sections 3, 4 & 5 of Immoral Traffic (Prevention) Act, 1956 and Section 370 of IPC are liable to be quashed."
9. In judgment of this Court in Gangasani Anil Reddy and another vs. The State of Telangana 3, it is held as under:
"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.
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"
.
2 Crl.P.No.4751 of 2021 3 Crl.P.No.7219 of 2016 6
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10. In judgment of this Court in Chinthala Shiva Rao vs. State of Telangana 4, it is held as under:
"13. This Court in Criminal Petition No.5803 of 2018 held that:
"Though the learned senior counsel for the petitioner contended that the judgment of this Court in "S.Naveen Kumar @ Naveen v. State of Telangana" did not lay down the correct law, but on analysis of provisions under Section 370 A (2) of I.P.C., it is clear that the petitioner allegedly came to brothel house and found in a room along with Sex worker, but the purpose is only to participate in sexual intercourse (prostitution) with sex worker. Such person is said to have engaged in sexual exploitation and the said sex worker is trafficked person. Therefore, the petitioner is liable to be proceeded in trial for the offence punishable under Section 370 A (2) of I.P.C. Even on reanalysis of the provisions, I find no other interpretation to sub-section (2) to Section 370 A of I.P.C. to refer the matter to any larger bench for authoritative pronouncement."
14. This Court is also in agreement with orders relied by the learned Assistant Public Prosecutor in considering that the petitioners-accused, who were alleged to be customers were not liable to be prosecuted for the offences under Sections 3, 4 and 5 of PITA as well as Section 370 of IPC, but were liable to be prosecuted for the offence under Section 370-A(2) of IPC. Hence, the charges against these petitioners for the offences under Sections 3, 4 and 5 of PITA as well as under Section 370 of IPC are hereby quashed. But, however, the charge for the offence under Section 370-A(2) of IPC shall be continued against the petitioners."
11. Though trafficking is not specifically defined in the Act, the same is defined in the explanation 2 in Section 370 of IPC, the consent of the victim women is immaterial in determination of the offence of trafficking. When the consent is immaterial the voluntariness of victim women indulging in the said Act cannot be looked into.
4 Crl.P.No.10771 of 2023 7
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12. In view of the above discussion as well as the law laid down by this Court in Thanna Bhargav Kumar (Supra 1), Dasari Venkatappaiah (Supra 2), Gangasani Anil Reddy and another (Supra 3) and Chinthala Shiva Rao (Supra 4), the proceedings against the petitioner/accused No.5 for the offences under Section 370(A)(2) of IPC are liable to be continued.
13. Insofar as applicability of Sections 3, 4 of the Act is concerned, it is apt to refer Sections 3 to 5 of the Act , which reads as under:
"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 sue, 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.(3)Notwithstanding anything 8 SKS,J Crl.P.No.7436 of 2024 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 a woman or girl 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.
(2)Where any person 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 meaning of sub-section (1):Provided that no such presumption shall be drawn in the case of a son or daughter of a prostitute, if the son or daughter is below the age of eighteen years."
14. In view of the aforesaid provision of law, since petitioner/accused No.2 is found at the scene of offence in the capacity of customer, petitioner/accused No.2 is not liable to be prosecuted for the offences under Sections 3, 4 of the Act.
15. Accordingly, the Criminal Petition is partly allowed. Consequently, the proceedings against the petitioner/accused No.2 in Crime No.174 of 2024 on the file of Nizamabad III Town Police Station, Nizamabad, for the offence punishable under 9 SKS,J Crl.P.No.7436 of 2024 Section 370 of IPC and Sections 3 to 5 of the Act, are hereby quashed. However, the proceedings against the petitioner/accused No.2 in Crime No.174 of 2024 on the file of Nizamabad III Town Police Station, Nizamabad, for the offences punishable under Section 370(A)(2) of IPC, shall be continued. Further, in sofar as Section 370(A)(2) of IPC is concerned, the Investigating Officer is directed to follow the guidelines formulated by the Apex Court in Arnesh Kumar v. State of Bihar 5 scrupulously and shall consider the explanation offered by the petitioner and complete the investigation in accordance with law.
Miscellaneous applications, if any pending, shall also stand closed.
_______________ K. SUJANA, J Date: 09.07.2024 gms 5 (2014) 8 SCC 273