Indian Kanoon - Search engine for Indian Law

16. That, ergo, the avowed objective behind introduction of Section 370A of the Penal Code, 1860, is to inter alia curb the menace of sexual exploitation with reference to a person who has been trafficked.

17. Section 370 of the Penal code, 1860, deals with Trafficking of Person. Section 370(1) of the Penal Code, 1860, reads as under:

"Whoever, for the purpose of exploitation, (a) recruits, (b) transports,

(c) harbours, (d) transfers, or (e) receives, a person or persons, by--

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.--The consent of the victim is immaterial in determination of the offence of trafficking.

18. A bare perusal of Section 370 of the Penal Code, 1860, amply discloses that the said provision is punitive in nature and Section 370(1) defines the word "trafficking" in a comprehensive manner. Section 370 provides punishment in case a person, for the purpose of exploitation, either recruits, or transports or harbours, or transfers or receives a person or person by threat or force or abduction or fraud or abuse of power or inducement etc., in order to achieve consent of any person having control over such person. Explanation 1 appended to said Section 370 inter alia encompasses any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs, under the ambit of "Exploitation".

19-04-2023 in CRLP Nos.8765 of 2022, 1190 of 2023, 1806 of 2023 & 1959 of 2023 amply discloses that there is no iota of dispute with respect to quashment of charges under the Act, 1956 insofar as Customer is concerned, by exercising powers under Section 482 of the Code of Criminal Procedure, 1973. The only issue, which had come into fore, is "whether a customer can be prosecuted for the offences under Sections 370 or 370A of the Indian Penal Code, 1860 ? "

23. As stated supra, Section 370 of the Penal Code, 1860 provides punishment in case a person, for the purpose of exploitation, either recruits, or transports or harbours, or transfers or receives a person or persons by threat or force or abduction or fraud or abuse of power or inducement etc., in order to achieve consent of any person having control over such person. Therefore, a customer, who is apprehended while engaging in sexual exploitation of a person who is trafficked, cannot be charged under Section 370 of the Indian Penal Code, 1860 as Section 370 deals with trafficking of a person.

27. In the case of Mohammad Riyaz v. State of Telangana, the alleged offences charged against Petitioner/Customer therein, who participated in Prostitution, are under Sections 370 and 370A(2) of the Penal Code, 1860 and Sections 3 to 5 of the Act, 1956. After extensively considering Section 370A of the Penal Code, 1860, Section 370 of the Penal Code, 1860 and Sections 3 to 5 of the Act, 1956, the learned Single Judge had rightly come to a conclusion that a Customer is liable to be prosecuted for the offence punishable under Section 370A(2) of the Penal Code, 1860, but not under Section 370 of the Penal Code, 1860.