1. Saroj Kumar Singh 2. Swadhin Das v. … …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Rev. No. 924 of 2019 1. Saroj Kumar Singh 2. Swadhin Das ----- Versus … …. Petitioners The State of Jharkhand … …. Opp. Party -----
Legal Reasoning
and held that prima facie case was found to be made out under Sections 3, 4, 5, 6, and 7 of the Immoral Traffic (Prevention) Act, 1956. As per the self-statement of Sub-Inspector-Uttam Kumar Tiwari which is the FIR in the present case, on 26.08.2016 a raid was conducted on an information that one Jyotsana @ Chhaya was running a prostitution racket in her house where the girls and boys from outside were called. The police conducted raid in the house of Jyotsana at 21.30 hours in which three girls and total five visitors were arrested at the spot. Other incriminating articles, which were found there, were also seized in the presence of the independent witnesses. Baharagora P.S. Case No. 46/2016 was registered under the provisions of Immoral Traffic (Prevention) Act, 1956 against all the named accused persons. The police on investigation found the case true and submitted the charge sheet. The discharge petition was rejected against which instant revision petition has been filed. It is submitted by learned counsel for the petitioners that a bare perusal of the provisions of Immoral Traffic (Prevention) Act, 1956 will show that no penal provision has been made to bring the visitors within mischievous of the Act. All the provisions from Sections 3 to 9 are directed against the keeping a brothel or allowing premises to be used as a brothel, for living on the earning of prostitution, procuring, inducing or taking a person for the sake of prostitution, 1 detaining a person in premises where prostitution is carried on. Seducing or soliciting for purpose of prostitution. It is further argued that the petitioners do not come within any of the categories under these sections. Furthermore, as per the FIR itself, petitioner no. 1 was not apprehended from the spot in any compromising situation but was only apprehended on suspicion. Reliance is placed on Naman Laddha Vs. State of Madhya Pradesh Station House Officer through Police Station Mahila Thana (Misc. Criminal Case No. 34970 of 2022) and Goenka Sajan Kumar Vs. The State of A.P., Rep. By Public (Crl. Petition No. 4161 / 2014). 5. 6. Learned counsel for the State has defended the impugned order but is unable to refer the section under which the charge will be framed in the case of visitors. The question of law that has been raised in the present case is whether a customer who visited a brothel can be proceeded against under the provisions of Immoral Traffic (Prevention) Act, 1956. Prosecution has been defined under Section 2(f) of the said Act which is as under: “Prostitution means the sexual exploitation or abuse of persons for commercial purpose, and the expression “prostitute” shall be construed accordingly.” Section 3-punishable for keeping a brothel or allowing premises to be used as a brothel. Section 4-punishment for living on the earning of prostitution. Section 5-procuring, inducing or taking person for the sake of prostitution. Section 6-detaining a person in premises where prostitution is carried on. None of these provisions will be attracted in the facts of the present case where petitioner no. 1 is said to be apprehended at in a compromising position, whereas petitioner no. 2 was caught at the place which was being used as a brothel. 7. 8. The matter for consideration is whether the act of the petitioners will make out a prima facie case under Section 7 of the said Act which applies to any person who carries on prostitution and the person with whom such prostitution is carried on. Kerala High Court in Methew Vs. State of Kerala (2022 SCC Online Kerala 6263) held that customer will come within the meaning of the words “persons with whom such prostitution is carried on”. Preponderance of judicial opinion is, however, otherwise, wherein it has been held that customer will not come within 2 the meaning of the above expression and no offence will be made out under the Immoral Traffic (Prevention) Act, 1956. The view of the High Courts of Karnataka, Andra Pradesh, Gujarat, Allahabad and Madhya Pradesh is that the customer will not come within the mischief of Section 7 of the Immoral Traffic (Prevention) Act, 1956, if there is no other allegation to bring his act within any other section. The cases in reference to these High Courts are as follows: i. Raghavendra @ Raghu Vs. State of Karnataka (Criminal Petition No. 8055/2016) dated 31st March 2017. ii. Vinod @ Vijay Bhagubhai Patel Vs. State of Gujarat & 1 (Cr. Misc. Application No. 8156/2017) iii. Goenka Sajan Kumar Vs. The State of A.P., Rep. By Public (Crl. Petition No. 4161 / 2014) dated 9th June, 2014 iv. Babu S. Vs. State By Kengeri Police Station Bengaluru (Crl. Petition No. 2119 / 2022) dated 4th April, 2022. 9. This Court is in agreement with the reasoning of the Allahabad, Karnataka and other High Courts that mere presence of an accused as a customer in brothel will not come out of offence under the Immoral Traffic (Prevention) Act if there is no other allegation against them of deriving any commercial benefit out of the said prostitution racket. 10. From the plain reading of Section 7 of the Immoral Traffic (Prevention) Act, it will be apparent that the said section is intended for the persons to carry on prostitution in a notified place or is in any way keeper of any public place knowing permit prostitute for the purpose of that tray. This provision is not directed against a customer.
Arguments
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Petitioners For the State Oral Order ----- : Mr. K.S. Nanda, Advocate : Mr. Abhay Kr. Tiwari, A.P.P. ----- 15 / Dated : 20.06.2024 1. 2. 3. 4. The instant revision petition has been preferred against the order dated 30.04.2019 passed in Baharagora P.S. Case No. 46/2016 (G.R. No. 306/2016), whereby and whereunder, learned court below has rejected the discharge petition
Decision
Under the circumstance, the impugned order is set aside. Cr. Revision Petition is allowed. (Gautam Kumar Choudhary, J.) AKT/Satayendra Uploaded 3