Criminal Petition No. 11861 of 2023 · The High Court · 2025

Order

The present Crimina,l Petition is filed under Section 482 of Cr.P.C. seeking to quash the proceedings against the petitioner/accusedNo.2inS.C.No.2g4of2024onthelrleofthe learned IV Additional Chief Judicial Magistrate, Ranga Reddy District,L.B.NagarfortheoffencesplrnishableunderSection 370(A)(2) of Indian Penal Code, 1860, Sections 3, 4 and 5 of the Prevention of Imrnoral Traffic Act, 1956'

2. Heard Mr.Ganesh Chelimella, learned counsel for the petitioner and Mr.E.Ganesh, learned Assistant Public Prosecutor appearing for respondent No. 1-State'

3. When the matter is taken up for hearing, learned counsel for the petitioner contendecl that the controversy involved in this Criminal Petition is squarely covered by the com.mon order dated 16.08.2023 passed by this Court in Crl'P'No'5073 and batch and prayed. to quash the proceedings against the petitioner herein'

4. Learned Assistant Public Prosecutor fairly conceded to the fact that this matter' is covered by the common order 9-ated 2 t6.O8.2(y.23 )assed by this Court in Crl.p.No.50'/3 and batch. O Therefore, he ;eeks to pass appropriate orders.

5. In vi: ,,., , rf the said submission and for the roar,lons alike in the common ,.rrder dated 16.08.2023 passed by tl,is Court in Cr1.P.No 5t) 7', the petitic,rr< and batch, and taking into account the fact that r was a customer, the proceedings against the petitioner/ a r: :r.rsed No.2 in S.C.No.294 of 2024 on the file of the learned I\i .r rl Citional Chief Judicial Magistrate, Rrrnga Reddy District, I... E '. agar are hereby quashed.

6. Accor'<li rr.1ly, the Criminal Petition is allorved Mr scr:11e Ir eous Petitions, pending if aly, shall st:r.nd closed. //TRUE COPY// Sd/- P PADMANABHA REDDY loepu ty REGIsTRAR t l To, .l siE(:)TtoN oFFtcER '\j

1. The Xlt/ l\(ic i lnal l\/etropolitan Magistrate, Cyberabad urt. t-layathnagar 2. The Statiorr l;use Officer, Police Station, Hayathnagar, Raclralionda 3. Two COs to -:r PUBLTC PROSECUTOR, High Courl-at tlyderabad. (OUT) 4. One CO tr I [:ll GANESH CHELTMELLA, Advocate topUCl 5. Two CL) ()r,c . ; Tpk/DL Y^/ HIGH COIU RT DATED.2'7 t0212025 ..-1==.= iiE i al (- ()t q ) o ,!,r ? i.l- |. rq. >\ .l' \-; _. .,-

ORDER CRLP.Na.11861 of 2023 CRIMINAL, TIETITION IS ALLOWED s d w, - 6\' j) HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY CRIMINAL PETITION Nos. 5073, 5560, 5673,5983, 5954, 6106, 6a10, 6198, 6299 6932,6952, 6020, 687 6, 6266, 6526, 5282, 6183, 6777,7058,71,40 and7164 of 2023 COMMONORDER: AII the above Criminal Petitions are filed to quash the proceedings against the petitioners-accused in respective Crimes/Calendar Cases/Preliminary Register Cases (P.R.Cs)/ Sessions Cases. The details of the relevant Crimes/ C.Cs/ S.Cs/P.R.Cs, offences alleged etc., are mentioned in the following ta bular form: CRIME CASES sl. No Criminal Petition No 1 5073 o12023 Accused Number A3 Crime No 431/7023 of Banjara Hills Police Station, Hyderabad 2 6183 of 2023 7764 of 2023 A3 A5 429 /2023 on the file of Raidurgam Police Station, Cyberabad 443 of 2021 on lhe (ile of Vanasthalipuram Police Station, Rachakonda Offences allegedly committed 370,370 (A)(2) tP C. and Sections 3, 4,5 of Immoral Traffic (Prevention) Act, 1956 (for short, 'the Act, 7956',) 370,370 (A) I.P.C. and Sections 3, 4, 5 of Act 370 (AX2) I.P.C. and Sections 3, 45 and 7 of PITA Act 2 CALENDAR CASE A4 370,370(A) I.l'.C ald Sections i,4 and 5 of Aci, l9I;6 4 16);2 ; t 202i l I c.C.No.388 qJ 2Q23 on the file of I Additional Junior ivil Judge-cum- Additional Metropolitan Magrstrate, Kukatpally, Prashanthna r PRELIMINARY REGISTER CASE:; ;6 r-l r, 2023 6 ti. l. (i : . 2023 7 {;.1 1r-r , 2023 8

629., 2023 9 691) ' r 2023 PRC No.256 of 2022 on the file of IV Additiorlal Metropolitan Magistrate Hyderabad P.R.C.No. 4 of 2023 on the file of II Additional Junior Civil Judge-cumJI Additional Metropolitan MagisLrate, Malka lrr P.R.C.No.18 of 2023 on thc file of the II Additional Judicial First Class trate at Ja P.R,C.No.146 of 2022 on the file of the XIV Additional MetIopolitan Magistrate at Prashanth Nagar, Kuka all lP.R.c-No.63 of 2023 on the file of the X Additional Mekopolitan istrate, Ran Ma A2 A5 370A I.I' C and Sectrons l, ,1 a rd 5 of Ac-, I 95 i 370(1\)(:) :P I ancl Sections l, I arrd 5 of Aci, . 95ri A2 70(A) (i)rii Ll'.C an Sections l, 1, ! and 7 cf A,'r, t9 i6 A3 and A4 370(.4) (2 ) l t'.,1ancl Sections ,1, 1,5 and 6 ,rf Ai t, i9l'i6 370(A)(2tlP.(land Sectrrrns:. . al .i 5 of Act, 1r5( .) Reddy District at Kukatpally 10 6876 of2023 P.R.C.No.52 of 2023 on the file of V Additional lunior Civil ludge-cum-V Additional Metropolitan Magistrate at L.B. Nagar, Ranga Reddy 11 6626 of 2023 P.R.C.No.72 of 2023 A2 on the file of the XIV Additional Metropolitan Magistrate, Kukatpally. Prashanth Nagar 12 7058 of 2023 P.R.C.No.25 of 2023 A4 on the file of X Additional h4etropolitan Magisrlate, Cyberabad, Kukatpally 370(A)(2) I.P.C and Sections 3, 4 and 5 o{ Act, 1956 370(,{)(2) I.P.C and Sections 3, 4, 5 and 6 of Act, 1956 370(A)(2) I.P.C and Sections 3, 4 and 5 of Act, 1956 13 7-1,40 oI2O23 P.R.C.No.127 of 2023 on the file of the III Additional Chief Metropolitan Magistrate at Hyderabad A2 370, 370(A)(2) \.P.C and Sections 3, 4 and 5 of Ac! 1956 SESSIONS CASES L4 5673 o12023 S.C.No.90 of 2023 on the file of the Principal Assistant Sessions Judge, Ranga Reddy District 15 5983 ot 2023 S.C.No.804 of 2019 on the file of III Additional Senior Civil Judge-cum- A3 A2

370.4 I.P.C and Sections 3 (L) (Z)(a), and 5 (1)(a) and' 7 of Prevention oI Immoral Traffic Amendment Act 2006 370(A)(2) I.P.C and Sections4and5of Act,1956 4 1(i 5 9ll r i'2023 L7 61')3 t 7022 1E 6l:r1l ,2023 L9 6lt t; t.lQ23 20 6l'.8.1 t 2023 21 f,'1i ' 2023 Assistant Sessions ludge, L.B. Nagar S.C.No.24 of 2023 on the file of I Additional District and Sessions Judge- cum-Metropolitan Sessions Judge- cum-Additional Family Court, Medchal-Malkajgiri District 5.C.No.1762 of 2022 on the file of XXXI Additional Metropolitan Magistrate, Kukatpally, Cyberabad S.C.No.372 o{ 2023 on the file of the III Additional Senior Civil Judge-cum- Assistant Sessions ludge, L.B. Nagar S.C.No.890 of 2021 on the file of the Senior Civil Judge- cum-Assistant Sessions Judge, Medchal 5.C.No.7762 of 2022 on the file of )C(XI Additional Metropolitan Magistrate, Kukatpally, Cyberabad S.C.No.285 of 2023 on the file of the Senior Civil Judge- cum-Assistant Sessions Judge Kukatpally A2 370(A)(r) l P Cand Sections 3 f:nd5of Ad, 191i6 A4 37c(^)(:2) lPCand Seclions 3, l, i and 6 of Act. L!156 370(A) I ['.{ and Sections 3rr )( )(a), 4 oI Act 195( and rions:;(, )(a) & Z of I'revt'n:ror L of lnrmor;r Tr:rffic tlA. Arnentinien 370(A)(t)'P.lancl Sections l, 1arrcl 5 of . Aci, 95rr 370iA){2.) .l).,1 and Sections l, :1, I and 6 oi A, t, L9 16 A2 A3 A4 and A5 370(A) I.I' C and Sections l;, I ard 5 o{ Act 'l 95( 5

2. Heard Sri Nageshwar Rao Pujari, Sri C. Rajeshwar Reddy, Sri T.S. Praveen Kumar, Sri M. Anil Kumar, Sri C. Vijay Shekar Reddy, Sri K. Venumadhav, Sr. R.R. Kalyan, Sri S. Ram Reddy, Sri Tera Rajinikanth Reddy, Sri Pranay Aditya Boyini, Sri Mohd. Fasiuddiru Sri Mettu Shankar, Sri Venkat Rao Patil and Sri Shaik Mahammad Hussen, the learned counsel appearing on behalf of respective petitioners and Sri C. Pratap Reddy, the learned Public Prosecutor appearing on behalf of respondent - State.

3. The question involved in all these criminal petitions is one and the same and, therefore, they are being disposed of by way of this common order.

4. In all the cases, the Police Agency is the complainant and the petitioners are the customers and they are arrayed as accused'

5. The brief facts are that on reliable informatiory raids were conducted by the police and crimes were registered against the organisers as weII as the petitioners/customers for the aforesaid offences. In some crimes, charge sheets have also been filed' 6

6. In r - r :,[ of the cases, the statements of the viclims were recorderl 'rr tler Section 161 Cr.P.C., a perusal of whi,:h, clearly discloses th due to poverty and other famill, f26p,11c,unds, the victims ha' rzoluntarily joined the organizatior-r o{ bro.hel house and have 1li ,,n their willingness to do sex with the rtr stomers- 7 . -I1l.'.- Ji r,', relating to sex work in our countn. is r;uicled as per LP C :i I Immoral TraJfic (Prevention) Act, 19 16. The said Act was or rr inaliy called as 'Suppression of Immora, T,:affic Act, 1956' arrd it r irs amended in 1986.

8. Secticr r 2(f) of the Act 1956 defines "prostirution" as the sexual f l,l 'lr{ ;rtion or abuse of persons for commercial uurposes. The act ot ;c i ral intercourse for consideration is not ilie gal per se; howev e.r-, t l-r, arm of the legislation, as made abundantly clear in the Act, l)r( is to inhibit or abolish commercialized .,,ic: namely, the traffic k r r . in women and girls for the purpose of proslitution as an orga ri:zed means of living. The Act, 1 956 provides punishment r the persons maintaining a brothel horsr, (Section 3) living cr t rt: earnings of the prostitution (Section 4), p rocuring, 7 inducing or taking person for the sake of prostitution (Section 5), detaining a person in premises where prostitution is carried on (Section 6), prostitution tn or ln the vicinity of public place (Section 7), seducing or soliciting for purpose of prostitution (Section 8) and seduction of a Person in custody (Section 9)

9. This Court oide order dated 16.04.2021 in Crl.P-No.3002 of 2021,, whlle dealing with the offences punishable under Sections 370(AX2) and 188 I.P.C and Sections 3,4 and 5 of the Act, 1,956, has relied on the judgment in S.Nazen Kumar tt. The State of TelanganaT, wherein a learned Single Judge in an alike-situation, where the customer alleged to have comrnitted the offences punishable under Section 37OA oI IPC and Sections 3, 4 and 5 of the Act, 1956, dealt with the said provisions of Section 4 of the Act, 1956, and Section 370A of IPC, and quashed the proceedings in the PRC for the offence under Section 4 of the Act, 1956, btt, however, directed the learned Committal Magistrate Court to take cognizance under Section 370A oI IPC against the petitioner- accused No.3 therein. The observations in paragraph Nos'6, 7 and 1 2Ol5 (2]rALD Crl.156 (A-P) B 8 of t}-re ;iri judgment are relevant and the silme . re extracted hereunde r ':,. As ightly argued, Section 4 basically acrls ,uith the ':ho I iztes on the eamings of the prostilL:tio L. Tl erefore, 'ny antount of force in the submission of leaqtcd :tnnsel ..,tttr thot a customer to f eslt tracle cnti,tr,l ,t lr, alerl ns '.Lttder Section 4 of PIT Act. This aspect u1n. nc hnre res . 'nce at least tzto judgments of this High tlout t .c. Goenka ' nlar 7)s. The State of A.P. [2Ua @ ALD (Cri) 264] and ,ttah Naidu zss. State of Andhra PradesL, [2a1.] (: ) AL,D ,'il establish tlrc same. Therefore, ciminal proc:edings ' .c petitioner/A3 lor the ollcnce undcr Set tiort t tf .'lT Act L ttbt liable to be quashed. , Hoaeoer, that is not end of the motte r A ,-te.usnl of :.e sheet would show that tlte police whilr clur;c stuetiitg ,2 Jitr the offences under Sections 3, 4, 5 nnd i tl'),|'f Act ':, Section 370A lPC, surpisingly ,.ltar1', ,ltertrd ,,r,\3 ottly under Section 4 of PIT Act, l,r.tt n,fi under .70A IPC. Section 370A IPC reads thus: Settilt ii1A - ion of a traffcked person. ,t Whoeaer, knowingly ot hauing retrsrlt io belieue ,:nor has been trafficked, engages such mtnar litr sexu al ,.trt in any manner, shall be punishe,l ut; tl r gorous t -Lent for a term which shall not be less thatr .{i.at years, :, may extend to seaen years, and shall nlso l.e I sltle to ,oeri:t it' titu e ': ,for p't tFj'c t.le ttrtu g,n SajL,r ) 7. .,r,u it)r ) ; tl,git,lt: I Llrt' '7 ) L ,!lr st't ,4 i utt tit,.l Lt ltcti'i tt .js,: i i 'n Expll lS thnt t r:::1tlo lr it:t,o'i;t: bttt ttit lhtit t 1 t:)'ll ), t t irnp 'i , : L,ttt L:i,t Jor s,:::t, nntl (', .t tL!St )1i,( t',tlls tL .'t NlrJ:/r zr (]oltr i,t prot;sit utuk t' t . , Whoeuer, knowingly by or haaing reason to belieoe 'sott has been trfficked, engages such persot f.or sexual 'tr in any monner, shall be punished untl , r, qttrous , nt:ltlt .for a term uthich shall not be less rlutrL tl,rer yenrs, , tnay extmd to fue years, and slull also be lit,btc tt' rtne. The phraseology engages such minor/:,rL:lt person r exploitation in any manner employed in sult sL,cti,tns (1) tf Section 370A IPC in clear terms indicatc.s ttu t ttry flesh 'ttho hires the aictim uonlan for sexual cxploilnti m also ; n the fold of Section 370A as an offender It shall be noted that in the wake o.f gn,g .ape of t in Delhi zohich arose an unpreced"ent public .ft,rrore, t'nt considered it f.t to drastically lm(ni ;eueral | : of IPC and in tfut direction applinted Lt C.ot:mittee ' Chaitnanship of late Justice J.S. Verma. ttrc ,ormer 9 Chief lustice of India. The Committee after internctinS cross sections of stake holders submitted its detailed report suggesting amendmeTlts and introduction of ztarious prooisions in penal laws like lPC, Cr.P.C., Eaidence Act etc. Consequent upon the said report sub-clause (2) of Section 370 IPC wss amended and Section 370A IPC wns introduced. Haoing regard to the mtowed object with which report was submitted and amendments and nnt prooisions were introduced in sezseral acts, it cannot be presumed for the moment that Legislators considered customer as an innocent uictim in the flesh trade. Therefore, Section 370A takes in its fold the custoffier also. So, despite the police charge sheeting petitioner/A3 only for the ffince under Section 4 of PIT Act and the Committol Court accepting the same, it is ez;ident from the charge sheet that the petitioner/A3 is prima facie liable fot chnrge under Section 370A though not under Section 4 of PIT Act zttith which he was charge sheeted. ,)

7. Now, the crucial question is whether the High Court in its inherent Power under Section 482 Cr.P.C- while quashing the proceedings against the petitioner/A3 for tlrc offence under Section 4 of PIT Act can direct the Committal Court to take cognizance of offence under section 370A IPC against him- ln my considered aiew, to secure the ends of justice, the High Court can exercise its inherent pozoer to giz'te such direction ushen the material placed by the prosecution i.e. charge sheet discloses the commission of offence under Section 3704 lPC. ln the result, tuhile quashing the proceedings in PRC No. 103 of 2014 on the fle of ll Additional lunior Ciuil ludge-eum-XlX Metropolitan Magistrate, Kukatpally at Miyapur, Cyberabad under Section 4 of PIT Act against the petitioner/A3, learned Committal Magistrate is directed cognizance under Section 370A IPC against the petitioner/A3."

8. 10 A perusal ol S. Naoen Kumay' s case clearly discloses that in view of the gang rape of Nirbhaya in Delhi, the Covernment considered it fit to amend several provisions of I.P.C- Basing on the directions o{ the Law Commission and the penal provisions, Section 370A I.P.C was introduced The learned Single Judge has 10 specificall',, iven a finding that having regard to thr: avowed object iv tlr , rhich the report was subrnitted and am etrdments rvele rnarl,, rrcl new provisions were introducerl in sr:r,t,ral acts, it cannoi: be ! : :iumed for a moment that Legislahtrs (.ons dered the customer ir; n irutocent victim in the flesh trade

71. Fu:'th r r.nore, as the petitioner in Crl,P.No.3002 o{ 2021 was only a cn,"t,,ner and as per the remand report, :h( offences allege<l agi r -:;t him were under Sections 3, 4 and 5 ot: the Act, 1956, bnt rrc under Sections 370A(2) and 188 I.P.(1., tte learned Single Jurl;1e ,,f tiris Court has relied upon the princip e laid down in the sa c , rl gment, and quashed the proceedings a1 ;ainst the petitiorrci lr ,, ein for the offences under Sections 3, 4 an j 5 of the Actuirlt or ir r dated 16.M.2021

12. l l r; ,r ', : to refer to Section 370.4 of the Act, 19l,;6. which reads a:; f r lr . ,'s ' .i) ) ,l: Exploitation of a trfficked person: 'i') Whoeaer, knowingly or hazting reason to rlieae that a minor has been traffcked, engtge; such minor for sexual exploitation in any ttiifter, shall be punished with rigorous itttprisonment 11 (2) for a term which shall not be less than foe years, but which may extend to seaen years, and shall also be liable to fne. Wlneoer, knowingly by or haoing reason to belieae that a person has been traffcked, engages such person for sexual exploitation in any manneL shall be punished With rigorous imprisonment for a term which shall not be less than three years, but which may extend to foe years, and shall also be liable to fne."

13. A perusal of sub-clause (2) of Section 370A oI the Act, 1956, discloses that 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 iiable to fine. However, the issue as to whether the customer has the knowledge that the person is trafficked or engaged for sexual exploitation has to be analyzed in order to punish him for the said offence.

14. Moreover, in the present cases, the 161 Cr.P.C. Statements of the victims clearly disclose that they have voluntarily participated in sexual intercourse with the customers Furthermore, at the stage of filing of the FIRs, the Police Agency t2 could nol p '\:e that the customers have knora,leclqr: a;rd/or the reason to lrc eve that the women were trafficked {or th: purpose of prostitutr , '

15. Frr'1h rlLore, the Criminal Law (AmenJrne'n t) Act, 2013 introduc'trrl I i :tiorr 3704, which criminalized those i^,ho engaged traffickec p r;ons or minors {or sexual exploitatior. The term "sexual c <:',1 r tation" is not defined in the IPC. Sectio r it(0 of Act, 1956 defin''s ' 'rrostitution" as sexual exploitation. Bu t, t here is no definitior rl I re said term il international law eithe r. Irr 2003, the UN Secre t u . General issued Special Measures for I,ro tection of Women ;urc llirls from Sexual Exploitation and lie.xtLal Abuse and dc,fin ect :,, xual exploitation as " any actual or attenryh,d abuse of n positiort t, it Ltlnerability, dffirential power, ff trus,, .;,or sexual Purpos():;/ 1', t t .[ing, but not limited to, profting mo'tet 11,'rl, ;ocially or politicallu tt o tlrc serual exploitation of another." That the persons, those rvho r: ;age minors or adults for sexual exploitatton, alone are pluril;i r,: i but not those, who engage otirers fr.r labour exploitati,ln. 13

76. Since Section 370A \.P.C. relates to engaging a trafficked person for sexual exploitation, whether it attracts to the customer or not is the question in the present cases

77. The Act, 1956 does not prohibit the sale of sexual services per se but it does criminalise the exploitation of sexual workers by third parties or any aspect of sex work that is likely to cause public nuisance. The Act, 1956 does not explicitly mention the customer's liability

18. It is pertinent to mention here that in many cases, the customers are usually apprehended at the site of the flat, apartment, lodge or house, which have been mentioned as brothel houses. The customers are chargesheeted for a range of offences under Sections 3 to 7 of the Act, 1956 and sometimes under Section 370 IPC. The customers may file an application either {or grant of anticipatory bail or for grant of bail along with a petitlon to quash the criminal proceedings initiated against l4

79. 1'h: p,:sons, who were in and around tl-re bn>thel houses, were also tr l :n.into custody by the police and wer:e treated as. custolrers \ riting for the prostitution. Mere l)res€nc€ does not justify iI,: o I, 11ce for prostitution, which accorcling to S:ction 2(f) of the A r,, I :)56 involves "sexual exploitation", w4ric r in turn, requires [;of . sexual intercourse.

20. [n [lre .,t esent cases, none of the charge sheets, ',vhich are under :hail r rge, disclosed that the customer was; :ar rgl-rt hold when hc rv.i . comn-ritting thc offence. Admittedly, rl,e.n the 161 CI.P.C. rs :E t( r*rcnts do not disclose that there was pr6 6f of any exchange oI roney. There is no specific proviston ur-rdcr the Act, 1956, that iq i rrected towards the customers. 21,. lt Ar.,,tt Rao and others tt. State of A.P.2. i^tt: Andhra Pradesh l{i: Court, while dismissing the petitions fitecL to quash the proce:1: -r;s under Sectior-rs 3 to 5 of the Act, i9r6 held that the custornc: 'an be booked under Section 7(1) of th,: {c,_, 1956, as per thr: d,:;lr I.ion of "prostitution" under Section 2(f r o the Act, 1956, ancl c , r:ided that merely having sexual intrtrc,rurse by 2 \{1.}i. '.P 0513 /2013 15 paying money does not attract "prostitution" mentioned under Section 7 of the Act, L956, since the prostitution involved "sexual exploitation" or abuse of persons for commercial purposes' Further, in Z. Lourdian Naidu zs. State of Andhra Pradesh3, the erstwhile High Court of Andhra Pradestu while allowing the petitions filed for quashing of the proceedings for the o{fences under Sections 3 and 4 of the Act, 1956, held that Section 4 of the Act would attract only if a person knowingly lives on the earnings of the prostitution of any other person' The activity carried out in a given premiscs will amount to Prostitution within the meaning of Section 2 of the Act,7956 only i'f sexual abuse by exploitation of the person is done for commercial purpose. Neither the brothel keeper, sex worker nor the -custorner'can be held liable under this Section.

22. Naaeen Knmar's case (supta) is notable for its ready conflation of trafficking with sex work. The exceptions to the judicial trend of exonerating customers under the Act, 1956 are limited. As per the said judgmen! customers cannot be tried for 3 2Ot3 (2l,ALD Crl.393 76 the offenc:s L..nder the Act, 1956. It is only where the customer performs. i-u , role...of .procrrring for,,another, the C,turtr; adopted different in . rpretation of customer's liability :ncl,:r S,:ction 370 (A) r.r'.(l

2.1 In A1, trd. Riyaz zs. State of Telangana (Crl.P.It|o.SB03 of 20L8, dated ''7.06.2018), this Court took into consi,ler.ation the varyini; olrl . 11n5 of the High Courts on custonler JiaLbility under the A<:1, l-ll : and Sections 370 and 370(,4.) LP.C rrrd held that custonrcr r \: not liable to be prosecuted undel Se,:tiors 3 and 5 of the z\ct, I ,r :i6 or Section 370 I.P.C., but, he could be l.eld liable under Sc<:tic 370 (A) I.P.C.

24. lt i:; tL . contention of the learned counsel appe;tring for the petitione,rs t , rt the ingredients of Section 370 (A) I I, rli ire not at all attrach:r to the customers, even if Sectior -161 Cr.p.C statements,j ,.,:lose that the victims have volunt,rrill- l;tePped into prostitutirr r Iue to poverty and other family backgror-.nr:s.

25. Wlrile lrterpreting so, in Mohd.Riyaz,s case, thit learned Single Jtrrl ge :rf this Court has opined that it is r.lt:ar that the t7 petitioner therein allegediy came to brothel house and found in a room along with the sex worker, and therefore, he is liable to be proceeded with the trial for the offence under Section 370A(2) I.P.C. In the said case, the learned Judge conflated participation in sexual intercourse with prostitution although the definition of prostitution under the Act,7956, requires sexual exploitation or abuse. He then conJlated sexual intercourse with sexual exploitation and presumed that the sex worker was trafficked although there is no allusion to this in the facts recounted in the decision.

26. But, in the present cases, none of the witnesses/sex workers stated that they have been exploited sexually or of sexual abuse. In the absence oI any material that the women are trafficked for the purpose of engaging for sexual exploitation, the offence under Section 370 (A)(2) I.P,C. will not attract against the customers. Further, the wording "trade to flesh" is not found in the said Section. As per Section 370 (A)(2) I.P.C., it is for the prosecution to always prove that the customer is also having reason inter alia to believe that the victim is trafficked, engages 1B persons I c l r t:xual exploitation. Then only the said tlection is attracted.

27. A:; irl , ady stated supra, the complainant Ls a r,r,ays the Police r\pe n ,,, who raids on the brothel houses, arrc] tlrat at that particulal p r1t of time, the customers whethel knorvir'.gly by or having r l,rs r rr to believe that a person has been rafficked, engages sr rr r person for sexual exploitation in anv r.ra:rner have come 1.o thc l,':othel house or not, cannot be stated Lv r.he Irolice Agency ,1i t[ . I particular point of time, in order to attra( t the said offence

28. Furt rt r:nore, the persons, who are caught in the prernises or in the .;rrr , rundings of the brothel house, wcre a)so i nplicated for the o-ff,:r ri: under Section 370 (A\ LP.C. The reror.ts or the proceed ir g s :;sued by the police themselves disc lose tha t the persons vr('r,not found along with the sex wor-ker,; in the room and thev l,,r r,, either waiting in or around the sur rou rclings of the brc,thtl t :,use. Therefore, those persons cannot be I er.med as customers 19

29. In any of the cases, neither the petitioners/customers nor the vicfims were subjected to medical evidence to prove that they had sexual intercourse and that the customers have sexually exploited the victims. None of the proceedings discloses about the said fact. Neither the contents of the proceedings of the police nor the 161 Cr.P.C. statements of the victims disclose that the customers knew or had a reason to believe that the women or minor were trafficked and that they were engaged for sexual exploitation.

30. Moreover, the petitioners were found only in the premises, but they were not found indulging in the act, in order to attract the ingredients of the offence punishable under Section 370(4)(2) I.P.C

31. Insofar as Section 370 I.P.C. is concerned, it envisages trafficking of person. As per the said Section, whoever for the purpose of exploitation (a) recruits, (b) transports, (c)harbours, (d) transfers or (e) receives a person or Persons by using threats or using force, or any other form of coercion or by abduction or by practicing fraud, or deception or by abuse of power or by 20 inducem :: r I rncluding the giving or receiving of p3 ,z11gp1s benefits, in ,,rder to achieve the consent of any pe,rson having control o rr:,r hc person, who is recruited, transltortcci, l,arboured, transfr:rrctl r, received, cornmits the offence of traf f :c kir',g. 32- 'l'h: p - rsent cases are completely relating to tlre ,:ustomers who hav,: b ::n involved in prostitution. Since Sectirn 370 I.P.C does not att , ict to the petitioners/customers ht:rein, th.t question of traf fjcl.in of women in the present cases does not tri;e

33. As ;i[r . ady stated supra, insofar as the offencr: p,unishable under Sr:,:li< r 370,4. I.P.C. is concerned, none oI the -s tal cments of the vic tinr:; ( :;close that they have been traffickt:d for th: purpose of prostihrt i,n dfld were forced to do prostitulio:r by the organizc,r. lrrrther, the 161 Cr.P.C. statements of tLe victims clearly clisrl , rer that they are doing prostituticn v.rliti inally for the reaso rs r,,rst known to them. Therefore, Section 3:r0A I.p.C. does not nt lact the facts of the cases on hand a:; Irr as the petitioners7' r stomers concerned, as the clut'stion of traffickinl; (l ) rs not arise in the absence of the tenn " tr.af licking,, 21

34. Insofar as the offences punishable under Sections 3, 4, 5 and 6 of the Act, 1956 are concerned, in view of the law declared by different High Courts including this Court, the customers are not liable to be prosecuted for the said offences. Therefore, the petitioners cannot be held liable to be prosecuted for the offences under Sections 3, 4,5 and 6 of the Act, 1956.

35. As far as the offence punishable under Section 7 of the Act, 7956, is concerned, the allegation of having sexual intercourse by paying money does not athact prostitution. Therefore, the customers carmot be held liable under Section 7 of the Act,7956.

36. Nextly, none of the statements of the victims disclose that the victims have been trafficked for the purpose of prostitution and they were forced to do prostitution by the organizer

37. For the foregoing discussion and having considered the authoritative principles of law and in the absence of any statement of the victims to the effect that the petitioners have approached them as customers, who were allegedly exploited, and since there is no sufficient material against the 22 petitioner sr' lstomers to prove that at the tinre of of fence, the custonler l [< r -,wingly and had a reason to belie\/e tha t t]re victims are kaffir:l:e r?vomen and engaged in sexual exploiti.tion, this Court is ol I t: considered view that the procer:drng:, arlainst the petition(,rs i l1.re respective F.I.Rs/C.Cs/P.R.Cs/S.{l-s are liable to be quasht'cl

38. t-'ri:rri rrl Petition Nos.5073, 6183 and 7164 ctf 2023 are allowed c rra ,l-ring the proceedings against the petitioners therein in thercsp e <: i ,, e Crimes mentioned therein;

39. r-rirri, rl Petition No. 6952 of 2023is allowed cu;rshing the proceedir p;s ., gainst the petitioner therein in the ('aler'.dar Case mentionc I b :rein;

40. (-rirri. Ll Petition Nos. 5560, 6106, 6710, 6299, 61,t32, 6876, 6626, 70:;l\ nd 7740 of 2023 are allowed tlrasring the proceed ir p s : gainst the petitioners therein in th _. I espective Preliminar,, i::gister Cases mentioned therein; and 4L. (lrirlir . I Petition Nos. 5673, 5983,5954, 67q8, 6t20, 6266, 6282 arrd 57', i ctt 2023 are also allowed quashing thc _.rroceedings ZJ against the petitioners therein in the respective Sessions Cases mentioned therein. Pending rniscellaneous applications, if any, shall stand closed. Date: 16.08.2023 G.ANUPAMA CHAKRAVARTHY, I