Andhra HC (Pre-Telangana)
Mohammed Shaheed vs State Of Telangana Rep. By Pp on 21 January, 2015
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO Crl.P.No.16593 of 2014 21-01-2015 Mohammed Shaheed .petitioner State of Telangana rep. by PP. Respondent Counsel for Appellant : Sri Bethi Venkateshwarlu Counsel for Respondent : Public Prosecutor <Gist: >Head Note: ? Cases referred: 1. 2014 (2) ALD (Crl.) 264 2. 2013 (2) ALD (Crl.) 393 THE HONBLE SRI JUSTICE U.DURGA PRASAD RAO CRIMINAL PETITION No.16593 of 2014 ORDER:
The petitioner/Accused No.5 along with A.1 to A.4 and A.6 is accused of committing offences under Sections 3, 4 and 5 of Immoral Traffic (Prevention) Act, 1956 (for short the Act). On the evening of 05.08.2014, the Police of Banjara Hills P.S raided the residential Flat No.104 in Jubilee Hills and found the said premises being used for prostitution. A.2 and A.4 were said to be the brothel house organizers, A.1 and A.3 were pimps whereas A.5 and A.6 were the customers. The police registered crime and investigating the matter.
2) Now the petitioner/A.5 filed this petition under Section 482 Cr.P.C seeking quashment of the proceedings in Crime No.864 of 2014 of Banjara Hills P.S, Hyderabad.
3) Learned counsel for petitioner would submit that none of the Sections 3, 4 and 5 or other sections of the Act describe a customer as offender and therefore, the prosecution of the petitioner/ A.5 is abuse of process of law and hence the proceedings against him may be quashed.
4) Learned Public Prosecutor contended A5 is a co-accused and liable for prosecution.
5) I find force in the submission of petitioner. Section 3 of the Act deals with punishment for keeping a brothel or allowing premises to be used as a brothel. Section 4 of the Act deals with punishment for living on the earnings of the prostitution. Whereas Section 5 of the Act deals with procuring, inducing or taking persons for the sake of prostitution. Obviously, the allegation against the petitioner/A.5 is not that of either running brothel house or procuring women for the purpose of prostitution or that he is living by earning money on prostitution. He was booked along with other accused only as a customer of the flesh trade. Therefore Sections 3 to 5 are not applicable to him. It is interesting to note that none of the other penal provisions in the Act either describe him as an offender. Therefore, there is any amount of force in the submission of learned counsel for petitioner that a customer to the flesh trade cannot be treated as an offender under the Act. This aspect is no more res integra and we are fortified by atleast two judgments of this High Court viz., Goenka Sajan Kumar vs. The State of A.P. and Z. Lourdiah Naidu vs. State of Andhra Pradesh . In these two cases, the petitioners were admittedly the customers to a brothel house. Consequently, the proceedings against them were quashed holding that the provisions of the Act cannot be invoked for prosecuting them.
6) Having regard to the facts and above precedential jurisprudence on the subject in issue, it is clear that the criminal proceedings against the petitioner would amount to abuse of process of law.
7) Before parting, I will be failing in my duty if I do not vent out my view on the present enactment. Law or literature cannot have more a noble aim than depicting evil of the society and suggesting the eradicative measures. That is why the noble Telugu play-wright Gurajada Appa Rao penned Kanya Sulkam exposing the obnoxious practice of parents marrying their infant daughters to septuagenarians and octogenarians for money. Another Telugu poet Sri Sri who advocated for the cause of oppressed and downtrodden clamoured in his ballad Kavitha o Kavitha for various sections of destitutes in society. One among them are prostitutes. Their plight and agony in his own words is thus:
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(half opened eyes of her screams of the dreaded pain for pet-storming brutal coitus !) Viewing in the above context, no doubt the Immoral Traffic (Prevention) Act, 1956 is a piece of legislation aimed at preventing trafficking of women. However, the point is whether the said noble aim can be achieved by merely making organisers of brothel house and pimps as offenders while leaving the customers of flesh trade scot free. As the saying goes no single hand can produce claps, vicious circle of immoral trafficking will not be completed without active participation of the flesh customers. In my considered view, it is unwise to say that a customer who lurks in day and night in search of hidden avenues to quench his sexual lust is a hapless victim of a crime to place him out of the reach of the tentacles of the law which is intended to eradicate the pernicious practice of immoral trafficking of women. Such an unwarranted sympathy on a criminal will not help achieve desired results though aimed at high. After all, the Court can only describe the law as it is but cannot dictate what it ought to be. Yet, through this judgment I appeal to the Legislature to ponder over the possibility of bringing the flesh customers within the fold of Immoral Traffic (Prevention) Act, 1956.
9) In the result, this Criminal Petition is allowed quashing the proceedings against petitioner/A.5 in Crime No.864 of 2014 of Banjara Hills P.S, Hyderabad.
As a sequel, Miscellaneous Petitions pending, if any, shall stand closed. The Registrar (Judicial) is directed to transmit a copy of this judgment to the Union Law Minister for perusal.
_______________________ U.DURGA PRASAD RAO, J Date: 21.01.2015