Gujarat High Court
Atulbhai Parshottambhai Barot vs State Of Gujarat on 16 June, 2023
R/SCR.A/3769/2018 ORDER DATED: 16/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3769 of 2018
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ATULBHAI PARSHOTTAMBHAI BAROT
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR RUTURAJ NANAVATI(5624) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 16/06/2023
ORAL ORDER
1. This petition is filed praying to quash and set aside the impugned orders dated 15.2.2017 vide Exh.6 in Criminal Case No.1200524 of 2014 passed by the Additional Chief Metropolitan Magistrate, Court No.13, Ahmedabad as well as the order dated 7.4.2018 passed in Criminal Revision Application No.77 of 2017 passed by the learned Additional Sessions Judge, Court No.12, City Civil and Sessions Court, Ahmedabad and further be pleased to discharge the petitioner in connection with the proceedings in Criminal Case No.1200524 of 2014 pending before the learned Additional Chief Metropolitan Magistrate, Court No.12, Ahmedabad.
2. The brief facts leading to filing of this petition Page 1 of 17 Downloaded on : Mon Jun 19 20:39:55 IST 2023 R/SCR.A/3769/2018 ORDER DATED: 16/06/2023 are as such that the petitioner is the original accused no.4 implicated in FIR being C.R.No.II-3120 of 2014 registered with Gayekwad Haveli Police Station, Ahmedabad for the offences punishable under Sections 3,45 and 6 of the Immoral Traffic (Prevention) Act alleging that, on receipt of message, the complainant along with his team and panchas reached at the the place and found that there were four women and one male member, who revealed the identity in presence of panchas. That, one of the accused namely Banuben confessed that three other women including herself were indulged in illegal activities of prostitution. Therefore, the complaint was filed against four accused including the present petitioner.
3. Pursuant to the complaint, investigation was carried out and chargesheet was also filed. Therefore, the present petitioner preferred application for discharge under Section 239 of the Code of Criminal Procedure, which was rejected and the revision application filed was also rejected.
4. Heard learned advocate Mr.Nanavati for the Page 2 of 17 Downloaded on : Mon Jun 19 20:39:55 IST 2023 R/SCR.A/3769/2018 ORDER DATED: 16/06/2023 petitioner and learned APP Mr.Joshi for the respondent-
state.
5. Learned advocate Mr.Nanavati submits that no offence is made out against the present petitioner as the present petitioner, as per the FIR, is considered as `customer' and the provisions of the Immoral Traffic (Prevention) Act cannot be made applicable. He has also submitted that otherwise also, on bare reading of impugned FIR, no offence is made out against the present petitioner. He has heavily relied on the decision of this Court (Coram: J.B.Pardiwala, (as His Lordships then was)) dated 5.5.2017 passed in Criminal Miscellaneous Application No.8156 of 2017, whereby this Court has considered exhaustively the provisions of the Act and submitted that this Court should exercise inherent powers under Section 482 of the Code of Criminal Procedure as no fruitful purpose would be served to proceed with the trial pursuant to the impugned FIR. He also relied on the judgment in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604 and prayed to allow this petition.
6. Per Contra, learned APP Mr.Joshi for the Page 3 of 17 Downloaded on : Mon Jun 19 20:39:55 IST 2023 R/SCR.A/3769/2018 ORDER DATED: 16/06/2023 respondent no.1-state submitted that the petitioner was caught red-handed at the time of incident and cannot escape by merely saying that he is only a customer. He has further submitted that the present petitioner has played active role in the crime in question and therefore this Court should not exercise discretionary powers as prima facie, offence is made out against the present petitioner. He has further submitted that the powers under Section 482 of the Code should be exercised sparingly and therefore prays to dismiss the petition.
7. I have considered the rival submissions, perused the material placed on record and also considered the provisions of Sections 3,4,5 and 6 of the Immoral Traffic (Prevention) Act, which read as under:
"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 Page 4 of 17 Downloaded on : Mon Jun 19 20:39:55 IST 2023 R/SCR.A/3769/2018 ORDER DATED: 16/06/2023 rigorous imprisonment for a term of 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 may be, has knowledge that the premises or any part thereof are beig used as a brothel, if,--
(a) a report is published in a newspaper having circulation Page 5 of 17 Downloaded on : Mon Jun 19 20:39:55 IST 2023 R/SCR.A/3769/2018 ORDER DATED: 16/06/2023 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 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].
Page 6 of 17 Downloaded on : Mon Jun 19 20:39:55 IST 2023R/SCR.A/3769/2018 ORDER DATED: 16/06/2023 [(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 meaning of sub-section (1).]
5. Procuring, inducing 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
(b) induces 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 4 [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;Page 7 of 17 Downloaded on : Mon Jun 19 20:39:55 IST 2023
R/SCR.A/3769/2018 ORDER DATED: 16/06/2023 [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 in respect 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;] (3) An offence under this section shall be triable--
(a) in the place from which a 1 [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.
6. Detaining a 1 [person] in premises where prostitution is carried on.--(1) Any person who detains [any other person, whether with or without his consent],--
Page 8 of 17 Downloaded on : Mon Jun 19 20:39:55 IST 2023R/SCR.A/3769/2018 ORDER DATED: 16/06/2023
(a) in any brothel, or
(b) in or upon any premises with intent [that such person may have sexual intercourse with a person who is not the spouse of such person], shall be punishable [on conviction, with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years].
[(2) Where any person is found with a child in a brothel, it shall be presumed, unless the contrary is proved, that he has committed an offence under sub-section (1). (2A) Where a child or minor found in a brothel, is, on medical examination, detected to have been sexually abused, it shall be presumed, unless the contrary is proved, that the child or minor has been detained for purposes of prostitution or, as the case may be, has been sexually exploited for commercial purposes.] (3) A person shall be presumed to detain a woman or girl in a brothel or in or upon any premises for the purpose of sexual intercourse with a man other than her lawful husband, if such person, with intent to compel or induce her to remain there,--
(a) withholds from her any jewellery, wearing apparel, money or other property belonging to her, or Page 9 of 17 Downloaded on : Mon Jun 19 20:39:55 IST 2023 R/SCR.A/3769/2018 ORDER DATED: 16/06/2023
(b) threatens her with legal proceedings if she takes away with her any jewellery, wearing apparel, money or other property lent or supplied to her by or by the direction of such person.
(4) Notwithstanding any law to the contrary, no suit, prosecution or other legal proceeding shall lie against such woman or girl at the instance of the person by whom she has been detained, for the recovery of any jewellery, wearing apparel or other property alleged to have been lent or supplied to or for such woman or girl or to have been pledged by such woman or girl or for the recovery of any money alleged to be payable by such woman or girl."
8. The relevant portion of the judgment rendered in Criminal Miscellaneous Application No.8156 of 2017 read as under:
"To put it in other words, whether a customer at a brothel is covered under Section 370 of the Indian Penal Code.
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 :Page 10 of 17 Downloaded on : Mon Jun 19 20:39:55 IST 2023
R/SCR.A/3769/2018 ORDER DATED: 16/06/2023
"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 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.
Page 11 of 17 Downloaded on : Mon Jun 19 20:39:55 IST 2023R/SCR.A/3769/2018 ORDER DATED: 16/06/2023
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.
(ii) The word "procures" used in this section connotes that somebody other than the petitioner should procure the Page 12 of 17 Downloaded on : Mon Jun 19 20:39:55 IST 2023 R/SCR.A/3769/2018 ORDER DATED: 16/06/2023 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, Page 13 of 17 Downloaded on : Mon Jun 19 20:39:55 IST 2023 R/SCR.A/3769/2018 ORDER DATED: 16/06/2023 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 to whether the prostitution is being carried out in or in the vicinity of public place. When Section 3 of the Page 14 of 17 Downloaded on : Mon Jun 19 20:39:55 IST 2023 R/SCR.A/3769/2018 ORDER DATED: 16/06/2023 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 Page 15 of 17 Downloaded on : Mon Jun 19 20:39:55 IST 2023 R/SCR.A/3769/2018 ORDER DATED: 16/06/2023 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 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."
In view of the above, I hold that the prosecution of the Page 16 of 17 Downloaded on : Mon Jun 19 20:39:55 IST 2023 R/SCR.A/3769/2018 ORDER DATED: 16/06/2023 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."
9. In view of the above and in view of the case of Bhajan Lal (supra), this is a fit case where the Courts should exercise discretion under Section 482 of the Code as no fruitful purpose would be served to proceed with the trial on the basis of such complaint.
10. Accordingly, this petition is allowed. The impugned orders dated 15.2.2017 vide Exh.6 in Criminal Case No.1200524 of 2014 passed by the Additional Chief Metropolitan Magistrate, Court No.13, Ahmedabad as well as the order dated 7.4.2018 passed in Criminal Revision Application No.77 of 2017 passed by the learned Additional Sessions Judge, Court No.12, City Civil and Sessions Court, Ahmedabad are quashed and set aside and the petitioner is discharged from the proceedings in Criminal Case No.1200524 of 2014 pending before the learned Additional Chief Metropolitan Magistrate, Court No.12, Ahmedabad. Direct service is permitted.
(SANDEEP N. BHATT,J) SRILATHA Page 17 of 17 Downloaded on : Mon Jun 19 20:39:55 IST 2023