The High Court · 2025

Order

This Crimina-l Petition is frled under Section 528 of the Bharatiya Nagarik Suraksha Sarrhita, 2023 (for short .the BNSSJ by the petitioner/ accused No.3, to quash the proceedings against him in Crime No.764 of 2024 on the file of Sanathnagar Police Station, Cyberabad, registered for the alleged offences punishable under Sections 143, 144 of Bharatiya Nyaya Sanhita, 2023 (for short 'the BNS) (previously, Sections 370 and 370(A) of the Indian Penal Code, 1860 (for short, 'the IpCJ) and Sections 3 to 5 of the Immora-l Traffic (Prevention) Act (for short .the Act,).

The brief facts of the case are that on 05. IO.2O24, at about 19:OO hours, on receiving credible information about running of brothel house at l"t floor, Room No.101, H.No.7-12- 1027, SRT 772, Kasivilla, Sanathnagar, the police raided the said premises arrd noticed that with an intention to earn money in ease manner, accused No.l procured the victim women for participating in illicit sexual intercourse with the customers by offering attractive amounts. It is stated that on OS.LO.2O24 accused Nos.2 and 3 went to the said premises to fulfrll their z s(s, Crl-P No as92 ol2o2s sexual desires and found with the victim women in the closed bedroom at the said premises. As such, accused Nos.1 to 3 along with the 'rictim women have been taken into custody and seized cash and mobile phones. Based on the complaint, a case was registered rride Crime No.764 of 2024 before the Sanathnagar Police, Cyberabad

3. Heard Sri K.Hemanth Kumar, learned Counsel for the Petitioner and Sri Arun Kumar Doddla, learned Additional Public Prosecutor for respondent No. 1-State.

4. Learned counsel for the petitioner submitted that since the petitioner/ accused No.3 is a customer, the offences under Sections 143, 144 of the BNS and Sections 3 to 5 of the Act are not applicable. In this regard, he placed reliance on the judgments of this Court in the case of Srt Shafi o. State of Telanganat, Pendll Udag Riran v. State of Telangand2, Yogesh K.B,.a. State oJ Kanto:ta,kas and prayed the Court to allow the Criminal Petition by quashing the proceedings against the petitioner/ accused No.3. 'crl.p.No. tsezz of 2oza 'crr.P.No. 16392 of 2024 t c.l.P.No.+ t8g of 2ozg / 3 s(s,J C.l.P No.4s92 of 2o2s 5 On the other hand, learned Assistant Public Prosecutor for respondent No. l-State opposed the submissions of the learned counsel for the petitioner stating that the presence of the petitioner was clearly found by the Police at the scene of offence and was taken into custody. He further submitted that according to the prosecution, this petitioner is also alleged for the offences punishable under Section 144 of the BNS (previously, Section 370(A) of the IPC) as the petitioner is found with the victim women in closed room at the said premises and placed reliance on the judgment of this Court in Thanna Bharagaa Kumar Vs State of Telanganca. Therefore, he prayed the Court to dismiss the Criminal Petition

6. In vieu' of the rival submissions of both the parties, this Court has perused the material available on record. Learned counsel for the petitioner mainly relied on the judgment of this Court in case of Sri ShcyE (Supra 1), wherein at paragraph Nos. I 1 and 12 it is held as under: "11. As seen from the entire case record, including the statement ofihe uicttm recorded under Section 161 of Cr.P.C., discloses that petitioner-acansed No.2 is a cltstomer and she clearlg stated that due to pouertA and otler familg backgrounds she joined brothel house and gtuen her willingness to do sex Luith the customers and stLe collecled money from ttle petittoner heretL Furth.ennore, th.ere is no allegation in the FIR that the petitioner herein had krautledqe and/or the reoson to belieue that the woman uds tralficke-cL for the purpose oJ prostitution. There,fore, the acrl.P.No.5999 of 2022 4 S,KSJ Crl.P.No as92 of 2025 ingredients required to constitute the offence under Section 37O(A) (2) of IPC is not mqde out again-st the petitioner. 12. In uieut oJ the aboue disazssion and hnuing considered thE fact that the petitioner-accused No.2 had no knouledge that the u)oman u)as traffcked for the purpose of prostitutton, this Court is of th.e con-sidered uieu that the continuqtion of the proceedings agailstpetitioner-accused No.2 amounts to abuse of process oJ laut, therefore, the proceedings agairlst the petitioner-acclsed No.2 are liable to be quashed."

7. In case of Pendli Ud.ag Klran (Supra 2), this Court at (verbatim reproduced) paragraph No.7 it is held as under: "7. As per Section 37O of IPC, ang person bg using threat or force or ang form of coercion or obduction or bA practicing fraud or deception or bg abusing of pou.ter or bg inducing can only be termed as a 'traff.cked person'. In the present case, as seen from th.e entire case record, the victim stated tlat she uas doing prosdAtdon Jor the sake oJ moneg and she joined broth.el house and gtven LLer uiLlingness to do sex uith customers."

8. [n order of the High Court of Karnataka in yogesh K.B. (Supra 3) at paragraph Nos.S to 10 held as under: (verbatim reproduced) '8. Section 13 of the Act, 1956, deals utith the pouter of the Special Police Olfi.cer and aduisory body ond it specifies that for each area th.ere shnll be a Special Police Olficer for dealing with offences under this Act in that area. 9. Section 13(2) of the Act, 1956, prouides thqt the SpeciqJ Police olficer sLnll not be lou tfle rank of an Inspector of police. Therefore, the Sub Inspector of Police had no authoity to investigate tle offence under the Act 70. Euen otherurise, the petitioner ho,s been implicated solely on the basis of tLte statement of accl-Lsed No.2 in Cime No.12/2023, and in th.e abserrce of ang corroboratiue mateial to substqntiate that the petitioner-acdlsed uas carrying on prostitution, th.e registration of the FIR is impermissible and u.rithout ang substance. Tlerefore, the continuation of the inuestigation uill be dn a"buse of process of law." (verbatim reproduced)

9. A plain reading of the above would abundantly make it clear that in the aforesaid judgments, neither the witnesses nor the sex workers admitted that they have been exploited sexually ,/ ./ -/. 5 SKS,J Cn-P No.4s92 oJ 2o2s or of sexual abuse. As such, in the absence of statements of - victim women to the fact they have been traffrcked for the purpose of prostitution to indulge the petitioners in the act, the petitioner carrnot be attributed for the alleged offences under the Act.

10. However, for better appreciation of the facts of the instant case, it is apt to refer Sections 143 and 144 of the BNS (previously, Sections 370 and 370(A) of the IPC), which reads as follows: "743. Tvafffclclng ol person.-(l) Whoeuer, for the purpose of exploitatioa rectuits, transports, harbours, transkrs, or receiues a person or persons, bA- (a) using tlweats; or (b) using force, or ang other fonn of aercion; or (c) bA abductiory or (d) bypractt-sing fraud, or deception; or (e) bg abuse of potuer; or (f) bg inducemen[ including the giuing or recetving oJ paAments or benefts, in order to achieue the consent of any person hauing control ouer the person recruited, trqnsported, harboured, transferred or receiued,commits the offence of trafficking. Explanation l.-The expression "exploitation" s|Lall include anA act oJ phgsical exploitation or any form of sexual exploitation, slauery or practices similar to slauery, seruitude, beggary or forced renrcual of organs. Erylanation 2.-The consent of the uictim is immateial in determination oJ the offence of trafficking. (2) Wloeuer commits tle oJfence of tralficking shall be punished with rigorous imprisonment for a letm uthich shall not be less than seuen gears, but uthich may ertend to ten gears, and shau also be liable to fine. (3) Were tlrc olfence inuolues the traffcking of more than one person, it shall be punislnble with rtgorous imprisonment for a J Crl.P No 4s92 oJ2025 !-I \ -- - ..1 -r I tenn which slwll not be less than ten Aears but tDhich maA erAend to imprisonm.ent Jor ttfe, ond shall olso be liabLe to fine. (4) Wlere th.e offence inuolues the trafficking of a child, it shall be punishable tDith igorous imprisonment for a tenn uhich sh,,ll tat be less tan ten Aears, but whtch may extend to imprtsonnvnt for ltfe, and shall al.so be liable to f.ne- (5) Wtwre th.e offerrce inuolues tlte traffcking of more thnn one child, it shra'U be punishnble uith ngorous impnsonment for a tem uhich shall not be less than foufteen years, but uhich mdV ertend to impisonment for liJe, and shall also be liabte to fine. (6) If a person is conuicted of the offence oJ tralficking of a chitd on more than one occasion, then such person sfnl be punislled tuith imprisonment for lik, rthich shall mean impitsonment for the remainder of that person's natural lik, and shnll also be liable to fine. (7) When a public seruant or a police olficer is inuolued, in th.e trafficking oJ ang person then, such public servant or police officer slnll be punished uith imprisonment Jor lik, uhich shall mean imprisonment for the remainder of tLuzt person's natural hfe, and shalt also be liable to f"ne.

744. Explottatlon oJ a tralllcked. person.- (1) Whoever, knowingly or hauing redson to belteve that a child has been tralfi.cked, engages such child for sental exploitation in ang manner, shall be punished utth rigorous imprisonment for a term uhich shall not be less thdn fi.ue Aears, but tuhich mag ertend to ten Aears, and shall also be liable to fine. (2) Waeuer, knouingly or hauing reason to belieue tlat a person has been traffcked, engqges such person Jor sennl eryloitdtion in ang manner, shall be punisled tttith rtgorous impisonment for a term uthich stLall not be less than ttwee geqrs, but which maV ertend to seven gears, and shrl.ll also be ltable to fne."

11. In judgment of this Court in ThannaBhargdv Kumat (Supra 4) at paragraph Nos. l1 and 13 held as under "11. Tfuis, by the aboue prouisions, it ts cleq.r tllot uhoeuer knouinglg or hauing reason to belieue tlat a minor or a person has been trafficked, engages such mirar or person for sental exploitation shall be punished.

13. In the case on hand, the acts commilTed bg the petitioner-Accused No.4 as per the contents of clnrge sh.eet squarelg Jall utithin the ambit of Section 37O-A (i, \' '.1 1 7 SK,s,J Crl.P.No.4592 of 2025 IPC. ThereJore, tus C.ourt is of tle uieut that tle proceedings for th.e said olfence are liable to be conttnued. No other ground is urged. or establislrcd bg tLe petitioner basing on which tle proceed.ings can be quashed. TlLerefore, this Coutt considers it desirable to allou this ciminal petition in pdrL" (verbatim reproduced)

12. In judgment of this Court in Dasari Venkatappaiah a. the State of Telangands at paragraph Nos.7 to t held as under: "7. Section 370(A)(2) of IPC deaLs with exploitation of a traffi.cked person. As per it, uhoeuer, knouinglg bg or hauing person to belieue that q person hla.s been truJficked, engages such person for sental exploitation in ang manner, slnll be punished with rtgorous impisonment for a term u.thich shqll not be less than three years, but which mag cxtend to fi.ue gears, and shall also be liable to fi.ne. 8. As discu-ssed aboue, the only allegation against the petitioner/ A5 is that he futs information from A1 and A4 utith regard to auailabilitg of utctims for ttLe purpose of exploitation sexuallg, he uent to Dolphin Hotel, and exploited the uictim sentally. 77uts, he is a anstomer. 9. In uiew of th.e aboue, this Coutt is prima facie of the optnion that the conlents of the complaint as well as tle remand reporl con-stitute the ofJence under Section 370(A)(2) ofIPC, and os disazssed qbove, the offences uruler Sectiorts 3, 4 & 5 of Immoral Iialfic (F'revention) Act, 1956 and. Section 370 of IPC are liable to be quoshed."

13. In judgment of this Court in Gangasanl Anil Red.dg and. d.nother v. The State of Telanganda, it is held as under: (verbatim reproduced) '[n the case on hand, tle petttioners, o-s per the proseettion uersion, uent to the brothel house, paid moneu to A1 to ltaue a sexual pleasure utith the uictims and had sennl intercDurse. On goirtg through the contents of the charge sheet, tt is clear that the petitioners/ A2 and A3 being tle a.$tonars/ pinlps ore au)are of the fact that the uictims u.tere traffi.cked for se/]tal exploitation and theA haue exploited them by paying money- Tlerefore, there are ingredients to con-sider tnt the petitioners luue commilled the olfence under Section 370(A)(2) IPC and hence, the prosecution shall proceed to charge th.e petitioners for the ojjence under Section 37O(A)(2) IPC" (verbatim reproduced) tcrl.P.No.4751 of 2021 "crl.P.No.7219 of 2016 8 sKs,., C.l-P.No 4592 of 2025

14. In judgment of this Court in Chinthala Shiua Rao us' State oJ Teldngandl, it is held as under: "13. This Court in Ciminal Petition No.5803 of 2O18 held that: "Though the learned senior counsel for the petitioner contended tlat Llte judgment of this Court in "S.Naueen Kumar @ Naueen u. Stqte of Telangana' did not IaA doun th.e cotect law, but on o.natysis of prouisions uru1er Sectton 37O A (2) of I.P.C., it i-s clear that the petitioner allegedlg came lo brothel lause and found in a room olong u.,ith Sex worke\ but the purpose is onlY to pdrticiPate in sen)al intercourse (ptostitution) with sex uorker' Such person is said to haue engaged in sexudl exploitdtiorL atuI tFe soid sex uorker is tralflcked persoa. Therefore, the petitioner is liabte to be proceeded in tial for the ollence pun-ishc,ble under Section 37o A (2) of IP.C Euen on reanalgsi-s of the prouisions, I fnd. no other interpretation tA sub section (2) to *ction 370 A of I P-C- to rekr the matter ta onA larger bench lor authoitdtiue pronouncenenl-" 14- This Court is also in agreement with otders relied by the leamed Assistant htblic Prosecutor in consideing that tlw petition.ers-acatsed, who uere alleged to be customers u)ere not liable to be prosecuted for the ofJenres under Sections 3, 4 and 5 of PITA as uell as Section 370 of IPC, but uere liqble to be prosecuted for the offence under Section 37O-A(2) of IPC Hence' the charges against these petitioners for the offences untier Sections 3, 4 and 5 of PITA as uell as under Section 370 of IPCare hereby qnshed. But, lloueuer, tle charge for the offence under Section 37O-A(2) of IPC slull be continued against the petition'ers." (verbatim reproduced)

15. Though trafficking is not specihcally defined in the Act, the same is defined in the explan ation 2 in Section 143 of the BNS (previously, Section 370 of the IPC), the consent of the victim women is immaterial in determination of the offence of trafficking. When the consent is immaterial the voluntariness of victim women indulging in the said Act cannot be looked into' Therefore, the observations of this Court in Sri ShcrlE (Supra 1), 'crl,p.tto-1ozu I of 2023 9 SKs,J Cd-P.No.4592 oI2o25 Pendli Udag Kiran (Supra 2) and Yogesh.I(.B. (Supra 3) about the absence of voluntariness of the victim women in their 161 statements, is not applicable to the present case to the extent of Section 144 ol the BNS (previously, Section 37O(A)of IpC). It is pertinent to note that when the Police raided the said premises, the petitioner/ accused No.3 is found with the victim women in the closed bedroom at the said premises. Hence, since the facts in the instan t case are differ from the facts in yogesh K.B. (Supra 3), the question of applicability of Section 13(2) of the Act does not arise.

16. In view of the above discussion as well as the law taid down by this Court in Thanna Bhargant Kumar (Supra 4), Dasari Venkatappatah (Supra 5), Gangasanl Anit Reddg and another (Supra 6) and Chinthala Shftla Rao (Supra 7), the proceedings against the petitioner/accused No.3 for the offences punishable under Section 744 of the BNS (previously, Section 370(A) of the IPC) are liable to be continued. 17 . Insofar as applicability of Sections 3 to 5 of the Act and Section 143 of the BNS is concerned, it is apt to refer Sections 3 to 5 of the Act, which reads as under: 10 \ \ sr(s J\ Crl P.No-4592 of 2025 , '3. Punisllment for keeptng a brotlel or allouing premises to be used as o.brothel. ts in the (l)Ang person who keeps or mqnoge5 or cc'ts or assrsi keeping or management of' a brothel shalt b-e puntshable on lrsi .inuictton with rigorous imprisonment for a tem of not less than one Aear and not more thdn three years ond also uttth fne uthich mag ertend to ttDo thousand rupees and in the o1 a second or subsequent conviction' uith igorous "*i imprisonment for a tefln of not less thon two gears and aot more than f,ue gears and' also utith fine which may extend' to truo thousind rupees (2)Any person uho'(o)being tLE tenant' lessee, occtpier or Person in charge of ang premtses' uses' or knouinglg crllouls any other person to sue' such prentises or ony p.7"rn"*of as i brothel' or(b)being the ouner' Iessor or uiaiora of any premises or the agent of s.uch ottner' Iessor or bndford, lets the sarne or ang part thereol uttth the knouledge that the same or ang Pdrt thereoJ is ifttended" to be used as <t' o' brothel, or is tttilfullg o partg to the use of "!* l:""t"' anA part thereof as a b'oit'et'Snoll be punishable on first conuictionu]ithtmprisonmentforotennwhichmagextendto i*o O.ou and with fine tLhich mag extend to ttuo t'tousand *p.L, ond in the euent of a second or subsequent conuictron' -irh ,tgorout intprtsonment for a term ruhich mag extend to 1r. yJ*s and cLlso uith fine'(3)Notrttitlstanding angthing 'contined in ang other law for tle time being in- force' on conuiction of any person refeted' to in clause (a) o.r. clause (b) of sub-section (2) of any offence und'er thttt sub-sectioft in respect of ana premises o' oiy po't thereoJ ang lea'se o.r agreement under uthich s"n p"ii'"t haue been leased out or are held oroccupied rrttletiflr-ofthecommtssionoftle,offeace'shall become uoid an'd inoperatiue uith elfect Irom the date oJ tlE sqrd conuiction'

4. Punishment for living on tle eamings of prostidttion' (1)An1'Person ouer tle age if eighteen yea-rs who -.knowinglg liues, uholly or in part, on tl'e eo^ings of the prostitution of a utoman or girl sholl be punishable tuith iwrisonment for a term uhich maA extend to tt//o Vears' or with fine tuhich mag ertend to one thousand ntpees' or tuith botll (2)where anY Person i's Proued- (a)to be ttuing Utt'. o' to be h'abihntlg in tle compang oJ' a prostitute; or tnue exercised' control' direction or inJtuerrce ouer tle '(b)to mouements of a prostitute in such d manner as to show that such person is aiding' abetling or compelling her prostitution: or (c)to be actirLg as a tout or pinltrt on betulf of a pro"Y*: '! 1Y.!l presumed until the controry is proued' that such person ts knouingly liwng on lhe eamings of prostttution of another p"rton--ithin the naaning oJ sub sectio-n t'l'Ol*!:O-'Y'^Y such presurnption slall be dra un in tle case oJ a son or 'be 77 sr(sJ Ctl.P-No.4592 of 2o2s daughtej of a prostitute, tJ th-e son or daughter is below the age of eighteen gears.

5. Procaring, inducing or taktng u)oman or @rl for the sake of prostittlton. (1 )Ang person uho (a)procures or attempts to procure a uroman or girl, uhether with or tuithout her consent, for tle purpose of prostttutton; or (bfaduce,s a woman or glrl to go from any place, tuith the intent that she mog for the purpose of prostitution become fie inmate oJ or Jrequent, a brothel; or (c)takes or attempts to take a u)oman or girl, or causes a u)oman or girl to be taken, from one place to dnother uith a vieu to her carrying on, or being brought up to ca.rry on prostitution; or (d)causes or induces a u)oman or @rl to cu:rry on prostih-thon;shall be punishable on fi,rst conuiction uith igorous imprisonment for o tenn of not less than one Aear and not more than tuto Aears and also u.tith fine uthich may ertend to two thousanrd rupees. (2)In the euent ol a second or subsequent conutclion of an offence under this section a person sha,ll be punishable uith rtgorous tmprisonment for a tem oJ not less than tuo gears and not more than rt.ue gears and also with fine uhich maA ertend to two thousand tupees. (3)An off<:nce under this sedion shrrll be trtable-(alin the plqce from wh -.h a tuoman or girl is procured, induced to go, taken or caused ta be taken or from uhich an attempt to procure or take such uontan or gtrl is made; or(b)in the place to which slw mag haue gorte as a result of the inducement or to whblt she is taken or caused to be taken or an attempt to take ler is made." I t

18. In vierv of the aforesaid provision of law, petitioner/ accu sed No.3 is found at the scene of offence in the capacity of customer, petitioner/ accused No.3 a-re not liable to be prosecuted for the offences under Sections 3 to 5 of the Act and Section 143 of the BNS (previously, Section 370 of IPC).

19. Accordingly, the Criminal Petition is parfly allowed Consequently, the proceedings against the petitioner/ accused ( t L2 sKs, Crt.P.No as92 ol2O2s No.3 in Crime No.764 of 2024 on the file of Sanathnagar Police Station, Cyberabad, for the offences punishable under Section 143 of the BNS (Previously, Section 370 of the IPC) and Sections 3 to 5 of the Act, are hereby quashed. However, the proceedings against the petitioner/ accused No.3 in Crime No'764 of 2024 on the frle of Sanathnaga-r Police Station, Cyberabad, for the offences punishable under Section 144 of the BNS (previously' Section 37O(A) of the lPC),shall be continued' Miscellaneous applications, if aly pending, shall also stand closed //TRUE COPY// Sd/. A.V.S. PRASAD EPUTY REGISTRAR SECTION OFFICER I I To, I

1. The Xll Additional Metropolitan Magistrate, Kukatpa ly at Prasanthnagar, Cyberabad.

2. The Station House Officer, Sanathnagar Police Station, Cyberabad' 3. One CC to SRl. K HEMANTH KUMAR Advocate [OPUC] 4.OneTwoCCstoPUBL|CPROSECUTOR,HighCourtatHyderabad(OUT) 5. Two CD CoPies RAS/gh HIGH COURT DATE D : 1 510412025 ORDER CRLP.No.4592 of 2025 -.:" -'1 .--\\ ., * 1 0 JUL 2025 .,. --.. I CRIMINAL PETITION IS PARTLY ALLOWED