Andhra Pradesh High Court - Amravati
Dinesh Kumar Chowdary, vs The State Of Andhra Pradesh on 26 August, 2022
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
HON'BLE SRI JUSTICE NINALA JAYASURYA
CRIMINAL PETITION No.6634 OF 2022
Between:-
Dinesh Kumar Chowdary
... Petitioner/
Accused No.3
and
The State of Andhra Pradesh represented by
Represented by its Public Prosecutor.
... Respondent
Counsel for the petitioner : Mr.Dasari S.V.V.S.V. Prasad
Counsel for the respondent : The Assistant Public Prosecutor
ORDER:
The present Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1972 seeking to quash the proceedings against the petitioner in S.C.No.14 of 2019 on the file of the Court of IV Additional Judge-cum-Special Judge for Economic Offences, Visakhapatnam.
2. Heard the learned counsel for the petitioner and learned Assistant Public Prosecutor representing the respondent.
3. The petitioner is Accused No.3 in Crime No.388 of 2018 on the file of Muvvalavanipalem Police Station, Visakhapatnam City. After completion of investigation, a charge sheet was filed against him along with other accused for the offences punishable under Section 370-A(2) of the Indian Penal Code, 1860 (IPC) and Sections 3, 4 & 5 of Immoral Traffic (Prevention) Act, 1956 (ITP Act) alleging that when the Police raided a 2 brothel house where Accused Nos.1 and 2 were present, and the petitioner and L.W.9 were found in nude condition in one bed room.
4. The learned counsel for the petitioner inter alia submits that prosecution for the offences under Sections 3, 4, 5 of ITP Act are not maintainable against a person, who visits the brothel house only as a customer. He further submits that the legal position as to whether a customer who visits a brothel house is liable for prosecution or not is no more res integra and the matter is covered by recent decisions of this Court in Padala Venkata Sai Rama Reddy vs. The State of Andhra Pradesh, Criminal Petition No.6733 of 2021 dated 29.11.2021, and Salapu Venkateswara Rao vs. The State of Andhra Pradesh, Criminal Petition No.2156 of 2022, dated 13.3.2022. While drawing attention of this Court to the said decisions, learned counsel would urge that charge sheet filed against the petitioner in the present case is liable to be quashed.
5. The learned Assistant Public Prosecutor inter alia fairly submits that in so far as the offences registered against the petitioner under Sections 3, 4, 5 of the ITP Act are concerned, the legal position in the decisions relied on by the learned counsel for the petitioner is well settled. However, he contended that in the decision rendered in Mohammad Riyaz vs. State of Telangana, Criminal Petition No.5803 of 2018, dated 27.6.2018, the issue with regard to the offence under 3 Section 370-A(2) of IPC was dealt with elaborately. In the said case, the crime was registered against the petitioner therein for the offences punishable under Sections 370 & 370-A(2) of IPC and Sections 3, 4 and 5 of ITP Act. The learned Judge while referring to the decisions of various High Courts held that the proceedings against the petitioner therein, who visited the brothel house as a customer are liable to be quashed in so far as the offences under Sections 3, 4 and 5 of ITP act are concerned, however, opined that the prosecution of the petitioner in respect of the offence punishable under Section 370-A(2) of IPC shall be continued.
6. The learned Judge in Padala Venkata Sai Rama Reddy while referring to the earlier decisions of this Court in Z.Lourdiah Naidu v. State of A.P.1, Goenka Sajan Kumar v. The State of A.P.2 as also the decision of Hon'ble High Court of Karnataka at Bengaluru in Sri Roopendra Singh v. State of Karnataka3 held that continuation of criminal proceedings against the petitioner therein, who was present in a brothel house at the time of raid by the Police as a customer, would amount to abuse of process of law, as no criminal liability can be fastened for any of the offences for which the charge sheet was filed. It is contextual to extract the relevant paras, which reads thus:
1
2013 (2) ALD (Cri) 393 = 2014(1) ALT (Cri) 322 (A.P.) 2 2014(2) ALD (Cri) 264 = 2015(1) ALT (Cri) 85 (A.P.) 3 Criminal Petition No.312 of 2020, dated 20.1.2021 4
(i) Paragraph Nos.6 and 7 in Z.Lourdiah Naidu:
"6. Section 4 of the Act would be attracted only if a person knowingly lives on the earnings of the prostitution of any other person. The activity carried out in a given premises will amount to prostitution within the meaning of Section 2 of the Act only if sexual abuse by exploitation of the person is done for commercial purpose.
7. Section 4 of the Act does not punish or make the person liable for the acts done by the person who is running the brothel house. This Section does not make the person, who carries on prostitution for her own gain, liable for punishment, so also the person who is running the said premises. This Section is meant to punish those persons who are living on the earnings of the prostitute. The said provision cannot be invoked for prosecuting the persons who visit the said premises. Therefore, the ingredients of Sections 3 and 4 of the Act are not made out. In that view of the matter, continuation of proceedings against the petitioners in C.C.No.337 of 2008 on the file of the learned Special Judicial Magistrate of First Class, Yerramanzil, Hyderabad is nothing but abuse of process of Court."
(ii) Paragraph Nos.4 and 5 in Goenka Sajan Kumar:
"4. Section 3 of the Act imposes punishment for maintaining a brothel house or allowing premises to be used as a brothel house. Section 4 imposes penalty for living on the earnings of prostitution. Section 5 deals with the procurement, inducement or inducing a person for the sake of prostitution. Section 6 of the Act speaks about detaining a person in the premises where prostitution is carried out.
5. None of these sections speak about punishment to the customer of a brothel house. Admittedly, the petitioner does not fall under the provisions of Sections 3 to 7 of the Act, as the petitioner was not running a brothel house nor did he allow his premises to be used as a brothel house. The petitioner is not alleged to be living on the earnings of prostitution. It is also not the case of the prosecution that the petitioner was procuring, inducing or in dicing any person for the sake of prostitution nor is it the case of the prosecution that any person was earning on the premises where prostitution is carried out."
7. In Criminal Petition No.2156 of 2022, the learned Judge following the earlier decisions referred to above and the decision in Criminal Petition No.6733 of 2021, dated 29.11.2021 (Padala Venkata Sai Rama Reddy) was pleased to 5 take a similar view and allowed the criminal petition quashing the offences registered against the petitioner therein.
8. In so far as the offence under Section 370-A(2) of IPC registered against the petitioner herein, the matter needs to be examined with reference to the relevant provisions of Law and the material on record.
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 overthe 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.--Theconsent of the victim is immaterial in determination of the offence of trafficking. Section 370-A(2) of IPC deals with exploitation of a trafficked person and reads thus:
(1) ... ...
(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.
Thus, to invoke the said provisions of law, there should be trafficking of person and engagement of such person for sexual exploitation by any one, knowingly or having reason to believe 6 that such person has been trafficked. In the present case, the remand report discloses that Accused Nos.1 & 2 as also L.W.9 voluntarily selected prostitution due to financial problems and living on the earnings. In such circumstances, trafficking of a person much less exploitation of a trafficked person would not arise at all, in the absence of which, no case can be made out against the petitioner. The statements of A1, A2 and L.W.9 would go to show that on their volition they selected prostitution and therefore the ingredients of Section 370-A(2) of IPC are not attracted. Therefore, registration of the crime against the petitioner under Section 370-A(2) of IPC is not legally sustainable and continuation of proceedings constitutes abuse of process of law. The case on hand, squarely falls within the guidelines set out by the Hon'ble Supreme Court in State of Haryana vs. Bhajan Lal4, and deserves to be quashed.
9. In the light of the legal and factual position referred to above, this Court is of the considered opinion that it is a fit case to quash the proceedings against the petitioner for the offences alleged against him.
10. Accordingly, this Criminal Petition is allowed quashing the proceedings against the petitioner/Accused No.3 in S.C. No.14 of 2019 on the file of IV Additional Judge-cum-Special Judge, Economic Offences, Visakhapatnam, for the offences 4 (1992) Suppl (1) SCC 335 7 punishable under Sections 3, 4, 5 of the ITP Act and Section 370-A(2) of IPC. Miscellaneous applications, pending if any, shall stand closed.
________________________ NINALA JAYASURYA, J August 26, 2022.
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