Telangana High Court
Sri. Elemala Prem Kumar And Another vs The State Of Telangana And Another on 29 March, 2022
Author: K. Lakshman
Bench: K. Lakshman
HON'BLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No.1411 OF 2022
ORDER:
This Criminal Petition is filed under Section - 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') to quash the proceedings in P.R.C. No.43 of 2021 on the file of the XI Additional Metropolitan Magistrate, Kukatpally, Hyderabad.
2. The petitioners herein are accused Nos.4 and 5 in the said PRC. The offences alleged against them are under Section - 370 of the Indian Penal Code, 1860 (for short 'IPC') and Section - 5 of the Prevention of Immoral Traffic Act, 1956 (for short 'PITA')
3. Heard Ms. Simran Wadhawan, learned counsel for the petitioners and the learned Assistant Public Prosecutor appearing on behalf of respondents - State.
4. In the charge sheet, the allegations against the petitioners herein - accused Nos.4 and 5 and other accused are that accused No.1 is running brothel house in the limits of Bachupally Police Station and also supplying victims to accused Nos.2, 3, 6 and 7 and 2 KL,J Crl. P No.1411 of 2022 sends customers to them on commission basis. From the year 2018, accused Nos.2 and 3 with the help of accused No.1 has been running the prostitution house in Shapur Nagar and recently three months back they shifted to H.No. 2-22-113/2, Navodaya Colony, Jagadgirigutta. Accused Nos.2 and 3 give Rs.4,000/- per day to the victims for doing prostitution. On 28.08.2020, accused Nos.2 and 3 called the victim - LW.1 to the prostitution house and also called the customers i.e., the petitioners herein to the said house for doing prostitution. For the last one year, accused Nos.6 and 7 with the help of accused No.1 has been running prostitution in Plot No.604A, Allwyn Colony, Jagadgirigutta and they used to give Rs.3000/- per day to the victims for doing prostitution. On receiving the information, LW.14 along with staff caught them and seized Samsung Mobile Phone and Condoms packets of different companies from their possession. Thus, the petitioners herein, accused Nos.4 and 5 have committed the offences punishable under Section - 370 of the IPC and Section - 5 of the PITA.
5. Ms. R. Simran Wadhawan, learned counsel for the petitioner, referring to the contents of the charge sheet, would 3 KL,J Crl. P No.1411 of 2022 submit that the petitioners never engaged in running a brothel house as alleged in the charge sheet. As per the contentions of the charge sheet, the petitioners herein are only customers found in brothel house for prostitution. They are businessman and private job respectively and, therefore, the question of engaging the sex worker and running a brothel house does not arise. In view of the same, the offences alleged do not attract against the petitioners. In support of the same, she has relied upon the decision in Naveen Kumar v. The State of Telangana1. With the said submissions, he sought to quash the proceedings against the petitioner herein.
6. On the other hand, learned Assistant Public Prosecutor would submit that there is specific allegation against the petitioners herein. Further, on the instructions of accused Nos.2 and 3, the petitioners went to the brothel house and found there with sex workers. Therefore, they are only customers. Prima facie, there are specific allegations against the petitioners herein. He would further submit that though the contents of the charge sheet lacks the ingredients of Section - 370 of the IPC and Section - 5 of the PITA, 1 . 2015 (2) ALD (Crl.) 156 (AP) 4 KL,J Crl. P No.1411 of 2022 the same would constitute an offence under Section - 370A (2) of the IPC. He would further submit that the proceedings are at PRC stage, and the Committal Court on consideration of the entire material including the statements of the witnesses recorded under Section - 161 of the Cr.P.C. and the contents of the charge sheet may take cognizance for the offence under Section - 370A (2) of the IPC and may not take cognizance for the offences under Section - 370 of the IPC and Section - 5 of the PITA. Though the offences alleged against the petitioners herein are under Section - 370 of the IPC and Section - 5 of PITA, this Court has power under Section - 482 of the Cr.P.C. to direct the Committal Court to take cognizance against the petitioners herein for the offence under Section - 370A (2) of the IPC. He has also placed reliance on the principle laid down by the High Court for the States of Telangana and Andhra Pradesh in S. Naveen Kumar1.
7. In view of the said rival submissions, the undisputed facts are that the petitioners herein are accused Nos.4 and 5 in the aforesaid PRC and they are businessman and private job respectively. The petitioners herein are childhood friends and 5 KL,J Crl. P No.1411 of 2022 reside in the same colony. They know that accused No.2 runs prostitution in his brother Akhil i.e., LW.4's house. The petitioners went to the brothel house for want of girls and they were apprehended by the police while they were in the room along with one lady. Thus, this Court is of the opinion that the petitioners herein are customers.
8. In view of the rival submissions, it is apt to refer to the provisions of Sections - 370 and 370A of the IPC and Sections - 3, 4 and 5 of the PITA, which are as under:
"370-A. Exploitation of a trafficked persons._ (1) xxxxx (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."
"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 6 KL,J Crl. P No.1411 of 2022 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 use, 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.
(2A) For the purposes of sub-section (2) it shall be presumed until the contrary is proved, that any person referred to in clause (a) or clause (b) of that sub-section, is knowingly allowing the premises or any part thereof to be used as a brothel or, as the case maybe, has knowledge that the premises or any part thereof are being used as a brothel, if, -
a. a report is published in a newspaper having circulation in the area in which such person resides to the effect that the premises or any part thereof have been found to be used for prostitution as a result of a search made under this Act; or b. a copy of the list of all things found during the search referred to in clause (a) is given to such person. (3) Notwithstanding anything contained in any other law for the time being in force, on conviction of any person referred to in 7 KL,J Crl. P No.1411 of 2022 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 any other person 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 and where such earnings relate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years.
(2) Where any person over the age of eighteen years 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 meanings of Sub-section (1).
5. Procuring, including or taking person for the sake of prostitution. -
(1) Any person who -
a. procures or attempts to procure a person, whether with or without his consent, for the purpose of prostitution; or 8 KL,J Crl. P No.1411 of 2022 b. includes a person to go from any place, with the intent that he, may for the purpose of prostitution become the inmate of or frequent, 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 carrying on or being brought up to carry on prostitution; or d. causes or induces a person to carry on prostitution; shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years:
Provided that if the person of whom an offence committed under this sub-section,-
i. is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and ii. is a minor, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years. XXXXX (3) An offence under this section shall be triable -
a. in the place from which a person is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such person is made; or b. in the place to which he may have gone as a result of the inducement or to which he is taken or caused to be taken or an attempt to take him is made.
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KL,J Crl. P No.1411 of 2022
9. As discussed above, the petitioners herein are customers. Therefore, the contents of the charge sheet lack the ingredients of Section - 370 of the IPC and Section - 5 of the PITA. A customer to flesh trade cannot be treated as offender under Sections - 3, 4 and 5 of PITA. There is no allegation against the petitioners herein that they have recruited, transported, harboured, transferred or received a person for the purpose of exploitation. In Mohammad Riyaz v. The State Of Telangana2, the High Court for the States of Telangana and the Andhra Pradesh referring to the principle laid down in S. Naveen Kumar1 and Vinod @ Vijay Bhagubhai Patel v. State of Gujarat [2017 (4) GLR 2804] quashed the proceedings against the customer for the offences punishable under Section - 370 of the IPC and Sections 3 to 5 of the PITA, however, permitted the Magistrate concerned to proceed further for the offence under Section - 370A (2) of the IPC. Therefore, this Court is of the considered opinion that the contents of the charge sheet lack the ingredients of Section - 370 of the IPC and Section - 5 of the PITA insofar as the petitioners herein are concerned. 2 . Criminal Petition No.5803 of 2018, decided on 27.06.2018 10 KL,J Crl. P No.1411 of 2022
10. It is relevant to note that in S. Naveen Kumar1 referring to the provisions of PITA, IPC and also the amendment to the IPC, held that this Court in exercise of its inherent power under Section
- 482 of the Cr.P.C. to secure the ends of justice, can give a direction when the material placed by the prosecution i.e., charge sheet discloses the commission of offence under Section - 370A (2) of the IPC. In view of the same, the Committal Court has to take cognizance for the offence under Section - 370A (2) of the IPC against the petitioners herein, customers. Though the Investigating Officer has not laid the charge sheet against the petitioners herein - accused Nos.4 and 5 for the said offences, still the Committal Court, on consideration of the entire material on record including the contents of the charge sheet, can take cognizance against the petitioners herein, customers for the said offence i.e., 370A (2) of the IPC.
11. In view of the above discussion, the proceedings in P.R.C. No.43 of 2021 on the file of the XI Additional Metropolitan Magistrate, Kukatpally, Hyderabad, are hereby quashed against the petitioners herein - accused Nos.4 and 5 for the offences under 11 KL,J Crl. P No.1411 of 2022 Section - 370 of the IPC and Section - 5 of the PITA. However, the learned Magistrate / Committal Court is directed to take cognizance under Section - 370A (2) of the IPC against the petitioners herein - accused Nos.4 and 5.
12. The present Criminal Petition is accordingly disposed of.
As a sequel thereto, Miscellaneous Petitions, if any, pending in the Criminal Petition stand closed.
____________________ K. LAKSHMAN, J th 29 March, 2022 Mgr