Madhya Pradesh High Court
Rishi Pal vs The State Of Madhya Pradesh on 18 December, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 18th OF DECEMBER, 2024
MISC. CRIMINAL CASE No. 13452 of 2024
RISHI PAL
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Abhijeet Dubey - Advocate for petitioner.
Shri Shashikant Bhati - Panel Lawyer for respondent/State.
ORDER
The instant petition under Section 482 of CrPC has been filed by the petitioner seeking quashment of FIR in relation to Crime No.402/2022 registered at Police Station Palasia, District- Indore for offence punishable under Sections 3, 4, 5 and 6 of the Immoral Traffic (Prevention) Act, 1956 (in short "the Act, 1956"
and Section 34 of M.P. Excise Act as well as quashment of charge-sheet and other consequential proceedings pending before the Court of JMFC, Indore arising out of said crime.
(2) In brief, the facts of the case are that on 14.09.2022, Police Station- Palasia received a secret information that prostitution is being carried out at HELLO SPA UNISEX SALOON, upon which a raid was conducted by police where the petitioner was found along with a lady, namely, "X" in compromising position in Room No.6. The petitioner is alleged to be a customer of prostitution namely "X"
who was engaged in sex work in lieu of money. On such allegation, petitioner Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 20-12-2024 16:53:47 2 was arrested and FIR was lodged. Relevant materaials were seized from spot. Statements of witnesses were recorded. After completion of investigation and other formalities, charge sheet was filed on 06.11.2022 for offence punishable under Sections 3, 4, 5 and 6 of the Act, 1956 and Section 34 of M.P. Excise Act against petitioner and other co-accused.
(3) It is contended on behalf of petitioner that even if the entire allegation in the FIR as well as charge sheet are taken on its face value, then no offence is made out against the petitioner under the Act, 1956 as the allegation against the petitioner is of him being a customer engaging in sex with a sex worker in lieu of money. It is further contended that in scheme of the Act, 1956, sexual exploitation or abuse of a person for commercial purpose and to earn the bread thereby keeping or allowing a premise as brothel and also when a person is carrying on prostitution in a public place or when a person is found soliciting or seducing another person is not punishable. There is no such allegation against petitioner. There is nothing to show that petitioner exercised control, direction or influence over the lady's movement in the way, which can be shown to be aiding or abetting her sex work. Mere visiting the house of sex worker as customer cannot be presumed to be living on earning of sex worker. No offence is made out against the petitioner. In support of contentions, learned Cousnel for petitioner has relied on the judgment of Learned counsel for the petitioner has relied on the judgments passed by the High Court of Gujarat in the case of Vinod @ Vijay Bhagubhai Patel vs. State of Gujarat [2017 SCC Online Guj 446 :(2017) 58 (4) GLR 2804], order passed by the High Court of Telangana & Andhra Pradesh in the case of Genka Sajan Kumar Vs. State of Andhra Pradesh in Cr. Petition No.4161 of 2014, order passed in the case of Z.Lourdiah Naidu & anr. Vs. State of Andhra Pradesh in Cr. P. No.408 of 2011, order passed by Punjab and Haryana High Court at Chandigarh in the case of Cap. K. I. Sunil Simon alias Sunil Simon vs. State of Haryana, dated 27-02-2024 in CRM-M-30724-2021 (2024 PHHC 027088), Allahabad High Court decision in the case of Dinesh Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 20-12-2024 16:53:47 3 Tiwari alias Dhirendra Kumar Tiwari vs. State of UP in Application under Section 482 No.9161 of 2023 dated 22-02-2024 (2024 AHC-LKO-15780) and Karnataka High Court at Bengaluru decision in the case of Babu S. vs. State,Criminal Contempt Petiiton No.2119 of 2022 dated 4th Day of April, 2022.
(4) Heard learned counsel for both the parties at length and perused the record.
(5) On the other hand, learned counsel for State opposed the contention of petitioner and submits that petitioner was found in fraudulent and compromising position with a lady. The act of petitioner very well comes under the purview of alleged offence. Therefore, this petition is devoid of merits and the same deserves to be dismissed.
(6) In the case of Vinod @ Vijay Bhagubhai Patel (supra), law relating to the Immoral Traffic Act has been discussed exhaustively and the relevant extract is as follows :-
"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 Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 20-12-2024 16:53:47 4 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 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.
Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 20-12-2024 16:53:47 5(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 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 Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 20-12-2024 16:53:47 6 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 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 Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 20-12-2024 16:53:47 7 or subtracted from recitals therein then the High Court would be absolutely justified in quashing the FIR or the chargesheet. 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. "
(7) Further, in the case of Captain K.I. Sunil Simon (supra) as well as in the case of Dinesh Tiwari @ Dhirendra Kumar Tiwari, it has already been observed as under:-
" In view of the above analysis, this Court is of the view that if a person visits a brothel, then, at the most, he may be said to be a procurer of a prostitute to satisfy his lust but not for the purpose of prostitution because acquiring a person for prostitution means sexual exploitation or abuse for commercial purposes and not for any other purpose which does not have any commercial purpose or earning money. Therefore, this Court answered both the questions raised in this case. First, a search conducted in violation of Section 15(2) of the Act can be said to be irregular but this ground cannot Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 20-12-2024 16:53:47 8 be the basis for quashing the impugned proceeding u/s 482 Cr.P.C. Still, this ground is available during trial, which can be decided on the basis of evidence, which may ultimately make the search doubtful. Second, a customer who visits the brothel will not be liable u/s 3/4/5/7/8/9 of the Act."
(8) In view of the above legal position and so also, in view of the decisions rendered by the High Court of Telangana & Andhra Pradesh in the case of Genka Sajan Kumar Vs. State of Andhra Pradesh and in the case of Z.Lourdiah Naidu & anr. Vs. State of Andhra Pradesh and other cases cited above, it is apparent that the act of visiting to house of sex worker as customer is not punishable under Sections of 3, 4, 5, 6 of the Immoral Traffic (Prevention) Act, 1956.
(9) It is not in dispute that petitioner was a customer in a brothel when search was conducted by police. A customer in a brothel cannot be hauled into criminal proceedings is the consistent view taken by different High Courts as well as Hon'ble Supreme Court in the above cited cases. In the case at hand, the allegation against the petitioner although is very specific that he was found with a lady in a compromising position and he was a visitor there, but it is no where mentioned that he was involved in the management of premises or in any way assist the co-accused persons in controlling and managing the activities of the premises.
(10) So far as offence under Section 34 of MP Excise Act against petitioner is concerned, no liquor was seized from possession of petitioner at the place of incident and alleged liquor was seized from kitchen room of the premises. Prima facie, no offence is made out against the petitioner for offence punishable under Section 34 of MP Excise Act.
(11) Consequently, this petition under Section 482 of Cr.P.C. is allowed. FIR Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 20-12-2024 16:53:47 9 bearing Crime No.402/2022, registered at Police Station- Palasia, District- Indore for offence punishable under Sections 3, 4, 5 and 6 of the Act, 1956 and Section 34 of M.P. Excise Act as well as charge-sheet and other consequential proceedings pending before the Court of JMFC, Indore arising out of said crime is hereby quashed. Petitioner is discharged from aforesaid offences/charges levelled against him.
(12) A copy of this order be sent to the police station concerned as well as trial Court concerned for necessary information and compliance.
C.c. as per rules.
(HIRDESH ) JUDGE MKB Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 20-12-2024 16:53:47