Gujarat High Court
Bhaliya Sureshbhai Laljibhai vs State Of Gujarat on 17 June, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
R/CR.MA/13987/2024 ORDER DATED: 17/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO.13987 of 2024
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BHALIYA SURESHBHAI LALJIBHAI
Versus
STATE OF GUJARAT & ANR.
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Appearance :
MR MATAFER R PANDE for the Applicant.
NOTICE SERVED TO CONCERNED POLICE STATION HOWEVER, SERVICE
REPORT NOT FILED BY POLICE STATION for the Respondent No.2.
MR RONAK RAVAL, APP for the Respondent No.1.
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 17/06/2025
ORAL ORDER
1. By way of this petition under Section 482 of the Code of Criminal Procedure, 1973, the applicant has prayed for quashing and setting aside FIR No.11210048220092 of 2022 registered with Umra Police Station, Dist. Surat under Section 370(a)(2) of the Indian Penal Code and Sections 3, 4, 5, 7 of the Immoral Traffic Pretension Act as well as consequential proceedings arising from the said FIR being Criminal Case No.302 of 2022, Sessions Case No.957 of 2022 pending before the learned Sessions Court, Surat.
Rule returnable forthwith. Learned Additional Public Prosecutor waives service of rule on behalf of respondents. With the consent of learned advocates appearing for the respective parties, the matter is taken up for final disposal today itself.
2. It is the case of the present applicant that he was a Page 1 of 10 Uploaded by R.N. SAVARIYA(HC00179) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 00:48:41 IST 2025 NEUTRAL CITATION R/CR.MA/13987/2024 ORDER DATED: 17/06/2025 undefined customer and was arrested pursuant to the raid carried out by the Crime Branch, Surat City for which FIR was registered on 27.1.2022 being FIR No.11210048220092 of 2022 with Umra Police Station, Dist. Surat under Section 370(a)(2) of the Indian Penal Code and Sections 3, 4, 5, 7 of the Immoral Traffic Pretension Act by one M. J. Chudasama, Anti Human Trafficking Unit, Crime Branch, Surat wherein it is stated that upon a secret information that in S.N.S. Platina Complex, Vesu, Surat, in Shop No.85-A, Office No.504, one R-1 Spa Massage Parlour is engaged in the business of flash-trade and under the guise of Spa, illegal brothel is being run and, therefore, a raid was planned. During the course of raid, ultimately, 7 girls, 3 customers and the person who was running the Spa was caught and arrested. The present applicant was also found during the course of raid and he was also arrested and ultimately, FIR was registered against him as well.
3. Pursuant to registration of FIR, the applicant preferred the present petition wherein vide order dated 24.7.2024, this Court issued notice and granted ad-interim relief in terms of paragraph 10 (B) in favour of the applicant whereby further proceedings pursuant to the FIR were stayed.
4. Learned advocate Mr. Pande appearing for the applicant submitted that the applicant was a customer and, therefore, the issue is squarely covered. He relied upon the decision of this Court in the case of Vinod @ Vijay Bhagubhai Patel v. State of Gujarat and another, reported in 2017 SCC OnLine Guj 446 wherein the Court has observed in paragraph 14 to 16 as under :-
Page 2 of 10 Uploaded by R.N. SAVARIYA(HC00179) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 00:48:41 IST 2025NEUTRAL CITATION R/CR.MA/13987/2024 ORDER DATED: 17/06/2025 undefined "14. To put it in other words, whether a customer at a brothel is covered under Section 370 of the Indian Penal Code.
15. 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 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 Page 3 of 10 Uploaded by R.N. SAVARIYA(HC00179) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 00:48:41 IST 2025 NEUTRAL CITATION R/CR.MA/13987/2024 ORDER DATED: 17/06/2025 undefined 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 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 Page 4 of 10 Uploaded by R.N. SAVARIYA(HC00179) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 00:48:41 IST 2025 NEUTRAL CITATION R/CR.MA/13987/2024 ORDER DATED: 17/06/2025 undefined 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 Page 5 of 10 Uploaded by R.N. SAVARIYA(HC00179) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 00:48:41 IST 2025 NEUTRAL CITATION R/CR.MA/13987/2024 ORDER DATED: 17/06/2025 undefined 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 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 Page 6 of 10 Uploaded by R.N. SAVARIYA(HC00179) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 00:48:41 IST 2025 NEUTRAL CITATION R/CR.MA/13987/2024 ORDER DATED: 17/06/2025 undefined 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 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 Page 7 of 10 Uploaded by R.N. SAVARIYA(HC00179) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 00:48:41 IST 2025 NEUTRAL CITATION R/CR.MA/13987/2024 ORDER DATED: 17/06/2025 undefined 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."
16. 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."
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5. By relying upon the aforesaid decision, learned advocate Mr. Pande submitted that the case of the present applicant is no different from the case relied upon by him as the applicant of the said decision was a customer and, therefore, the ratio of the said decision would squarely apply to the present applicant as well.
6. Learned Additional Public Prosecutor Mr. Ronak Raval opposed the petition and submitted that the applicant was caught during the raid and charge-sheet has also been filed against the present applicant and it is on account of the relief granted by this Court that the trial could not proceed further, otherwise the trial was already going on. As the present applicant is directly involved in the offence in question and as reading of the FIR prima facie discloses an offence, this Court may not allow the petition and dismiss the same.
7. I have heard learned advocates appearing for the respective parties. It is an undisputed fact that the applicant was caught during raid on the spot which was under the guise of Spa in fact was found to have run a brothel. However, the undisputed fact is that the applicant was not the Manager of the brothel but he was caught as a customer and, therefore, the observations made by the coordinate Bench in the case of Vinod @ Vijay Bhagubhai Patel v. State of Gujarat and another (Supra), more particularly, paragraphs 14 to 16 would are referred to herein above.
8. Further, the coordinate Bench of this Court vide order dated 15.12.2023 passed in the case of Jojo Thomas Page 9 of 10 Uploaded by R.N. SAVARIYA(HC00179) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 00:48:41 IST 2025 NEUTRAL CITATION R/CR.MA/13987/2024 ORDER DATED: 17/06/2025 undefined Kannappilly v. State of Gujarat, rendered in Criminal Misc. Application No.7387 of 2023 has taken a similar view by relying upon the judgment of this Court in the case of Umedsinh P. Champavat v. State of Gujarat, 2006 (2) GLH 736.
9. In view of the above observations which is squarely applicable in the facts of the present case, I am of the opinion that the petition is required to be allowed. Accordingly, the impugned FIR being FIR No.11210048220092 of 2022 registered with Umra Police Station, Dist. Surat is quashed and set aside qua the applicant. Consequently, all other proceedings arising out of the aforesaid F.I.R. are also quashed and set aside qua the applicant. Accordingly, Rule is made absolute.
Direct service is permitted.
(NIRZAR S. DESAI,J) SAVARIYA Page 10 of 10 Uploaded by R.N. SAVARIYA(HC00179) on Fri Jun 27 2025 Downloaded on : Sat Jun 28 00:48:41 IST 2025