Andhra Pradesh High Court - Amravati
Between vs The State Of Andhra on 21 June, 2022
Author: Ninala Jayasurya
Bench: Ninala Jayasurya
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
HON'BLE SRI JUSTICE NINALA JAYASURYA
CRIMINAL PETITION No.4205 OF 2022
Between:-
Kanakala Rama Rao
... Petitioner/Accused No.3
and
The State of Andhra Pradesh represented by
Represented by its Public Prosecutor.
... Respondent
Counsel for the petitioner : Mr.Kakumanu Joji Amrutha Raju
Counsel for the respondent : The 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 C.C.No.39 of 2018 on the file of the Court of Principal Junior Civil Judge-cum- Metropolitan Magistrate, Visakhapatnam.
2. Heard the learned counsel for the petitioner and learned Additional Public Prosecutor representing the respondent.
3. The petitioner is Accused No.3 in Crime No.224 of 2015 on the file of Pendurthy Police Station. After completion of investigation, a charge sheet was filed against him along with other accused for the offences punishable under Section 370A(2) of the Indian Penal Code, 1860 (IPC) and Sections 3, 4, 5 & 7 of Immoral Traffic (Prevention) Act, 1956 (ITP Act) alleging that when the Police raided the house of Accused No.1 on information that she was conducting a brothel house, the 2 petitioner was present there stated before the mediators that he visited the said premises for the purpose of prostitution.
4. The learned counsel for the petitioner inter alia submits that prosecution for the offences under Sections 3, 4, 5 & 7 of ITP Act is 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 Additional Public Prosecutor inter alia fairly submits that in so far as the offences registered against the petitioner under Sections 3, 4, 5 & 7 of the ITP Act is 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 Section 370A(2) of IPC was dealt with elaborately. In the said 3 case, the crime was registered against the petitioner therein for the offences punishable under Sections 370 & 370A(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 370A(2) of IPC shall be continued.
6. The learned Judge in Padala Venkata Sai Rama Reddy while referring 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, cannot be fastened with any criminal liability in respect of any of the offences for which the charge sheet was filed and the same would amount to abuse of process of law. The relevant portions may be extracted for ready reference:
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 (Salapu Venkateswara Rao) was pleased to take a similar view in identical facts and circumstances and allowed 5 the criminal petition quashing the offences registered against the petitioner therein.
8. However, in the present case, an offence under Section 370A(2) of IPC was also registered against the petitioner. A learned Judge in Criminal Petition No.5803 2018, while dealing with similar fact situation, inter alia opined that the customer is liable to be prosecuted for the offence punishable under the said Section. The relevant portion of the Order reads as follows:
"Section 370A(2) of I.P.C. deals with punishment for exploitation of a trafficked person, which reads thus:
"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."
In view of Section 370 A (2) of I.P.C., the petitioner, who was found along with a sex worker in a room, is liable to be prosecuted for the offence punishable under Section 370 (A) (2) of I.P.C.
This Court in "S.Naveen Kumar @ Naveen v. State of Telangana" and "Sahil Patel v. The State of A.P .", 2015(2) ALD (Crl.) 156, consistently held that the customer is also liable to be prosecuted for the offence punishable under Section 370-A of I.P.C.
The same view is also expressed by the High Court of Gujarat at Ahmedabad in "Vinod v. State of Gujarat", (2017) 4 GLR 2804, which is as follows:
"b) However, that is not end of the matter. A perusal of the charge sheet would show that the police while charge sheeting A1 and A2 for the offences under Sections 3, 4, 5 and 6 of PIT Act and under Section 370A IPC, HC-NIC Page 22 of 24 Created On Sat May 06 01:34:48 IST 2017 surprisingly charge sheeted petitioner/A3 only under Section 6 4 of PIT Act, but not under Section 370A IPC. Section 370A IPC reads thus:
Section 370A - Exploitation of a trafficked person (1) Whoever, knowingly or having reason to believe that a minor has been trafficked, engages such minor for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than five years, but which may extend to seven years, and shall also be liable to fine. (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.
c) The phraseology engages such minor/such person for sexual exploitation in any manner employed in sub- sections (1) and (2) of Section 370A IPC in clear terms indicates that the flesh customer who hires the victim woman for sexual exploitation also falls within the fold of Section 370A as an offender.
d) It shall be noted that in the wake of gang rape of Nirbhaya in Delhi which arose an unprecedent public furore, Government considered it fit to drastically amend several provisions of IPC and in that direction appointed a Committee under the Chairmanship of late Justice J.S.Verma, the former Chief Justice of India. The Committee after interacting cross sections of stake holders submitted its detailed report suggesting amendments and introduction of various provisions in penal laws like IPC, Cr.P.C., Evidence Act etc. Consequent upon the said report sub-clause (2) of Section 370 IPC was amended and Section 370A IPC was introduced.
Having regard to the avowed object with which report was submitted and amendments and new provisions were introduced in several acts, it cannot be presumed for the moment that Legislators considered customer as an innocent victim in the flesh trade. Therefore, Section 370A takes in its fold the customer also. So, despite the police charge sheeting petitioner/A3 only for the offence HC-NIC Page 23 of 24 Created On Sat May 06 01:34:48 IST 2017under Section 4 of PIT Act and the Committal Court accepting the same, it is evident from the charge sheet that the petitioner/A3 is prima facie liable for charge under Section 370A though not under Section 4 of PIT Act with which he was charge sheeted." In an unreported judgment rendered by the High Court of Karnataka in "Jeevan v. State of Karnataka (Criminal Petition No.3026 of 2017)", it was held as follows:
"Under the similar facts and circumstances pertaining to some other case in C.C.No.28501/2015 this Court had occasion to deal with the said aspects where offences under Sections 188, 370(3), 370A, 294 r/w 109 of IPC are invoked so far as the customers are concerned. This Court in the said case in Criminal Petition No.7935/2016 dated 28.11.2016 has categorically in detail discussed the above said provisions and held that those provisions are not attracted so far as the customers are concerned. In this case also similar facts and 7 legal aspects are involved. There is no reason to deviate from the above said observation made by this Court. Apart from that, Section 188 of IPC cannot be invoked against the petitioners by the police, as there is a specific bar under Section 195 of Cr.P.C. Section 370(3) of IPC defines, whoever for the purpose of exploitation recruits, transports, harbours, transfers or receives a person or persons for the purpose of trafficking, such person is punishable under Section 370 of IPC and if the involvement of more than one victim, then sub- section (3) of Section 370 of IPC is attracted. No where it is stated that the petitioners have indulged in exploitation, recruiting, transporting, harbouring, transferring or receiving any person. In this regard, Section 370(A) of IPC is also referable to exploitation of trafficking any person. There is no allegation whatsoever that these petitioners have exploited for wrongful gain."
In view of the law declared by the Single Judge of this Court and reiterated by the other Courts and the judgments referred supra, the customer is liable to be prosecuted for the offence punishable under Section 370 A (2) of I.P.C. Though the learned senior counsel for the petitioner contended that the judgment of this Court in "S.Naveen Kumar @ Naveen v. State of Telangana" (referred supra)" did not lay down the correct law, but on analysis of provisions under Section 370 A (2) of I.P.C., it is clear that the petitioner allegedly came to brothel house and found in a room along with Sex worker, but the purpose is only to participate in sexual intercourse (prostitution) with sex worker. Such person is said to have engaged in sexual exploitation and the said sex worker is trafficked person. Therefore, the petitioner is liable to be proceeded in trial for the offence punishable under Section 370A(2) of I.P.C. Even on reanalysis of the provisions, I find no other interpretation to sub-section (2) to Section 370 A of I.P.C. to refer the matter to any larger bench for authoritative pronouncement."
9. In the light of the legal position expounded above, this Court is inclined to quash the proceedings against the petitioner in respect of the offences punishable under the ITP Act only.
8
10. Accordingly, this Criminal Petition is allowed in part quashing the proceedings against the petitioner in C.C. No.39 of 2018 on the file of the Court of the Principal Junior Civil Judge-cum-Metropolitan Magistrate, Visakhapatnam for the offences punishable under Sections 3, 4, 5 & 7 of the ITP Act only and the learned Magistrate is permitted to proceed further in respect of the offence punishable under Section 370A(2) of IPC. Miscellaneous applications, pending if any, shall stand closed.
________________________ NINALA JAYASURYA, J June 21, 2022.
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