Andhra Pradesh High Court - Amravati

Ballepu Satyanarayana, vs State Of Andhra Pradesh, on 16 December, 2021

THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY

CRIMINAL PETITION No.3727 OF 2020

ORDER:-

This criminal petition under Section 482 of the Code of

Criminal Procedure, 1973 (for short "Cr.P.C."), is filed seeking

quash of the proceedings in P.R.C.No.3 of 2020 on the file of

learned I Metropolitan Magistrate, Vijayawada, against the

petitioners, who are A-3 and A-4 in the said P.R.C.No.3 of 2020.

2. Heard learned counsel for the petitioners and the learned

Additional Public Prosecutor for the State.

3. In fact, there are about four accused in Crime No.807 of

2019 of Patamata Police Station, Vijayawada City, arising out of

the above P.R.C.No.3 of 2020 on the file of learned I

Metropolitan Magistrate, Vijayawada. The version of the

prosecution is that A-1 andA-2 have been maintaining a brothel

house and running prostitution and living on the earnings of the

prostitutes. At the time when the police raided the said brothel

house, they found the petitioners herein, who are A-3 and A-4 in

the said brothel house as customers, who visited the said

brothel house for prostitution on payment to A-1 and A-2. A-1

and A-2 collected money from the petitioners and allowed them

for prostitution in the said brothel house. Therefore, the above

charge sheet in P.R.C.No.3 of 2020 was filed under Sections

370(2), 370(A)(2) of the Indian Penal Code, 1860 and under

Sections 3, 4 and 5 and Section 6(1)(a) of Immoral Traffic

(Prevention) Act, 1956 against the accused. The said case is

now pending before the committal Court for committal of the

case to the trial Court.

4. Learned counsel for the petitioners submits that the

petitioners are only customers, who visited the said brothel

house for prostitution on payment made to A-1 and A-2 and as

per the settled law in this regard customer is not liable for

prosecution for any of the offences for which the F.I.R. is

registered. Therefore, he would submit that allowing the

proceedings to be continued against the petitioners in the facts

and circumstances of the case would amount to abuse of

process of Court. Therefore, he would pray for quash of the said

proceedings against the petitioners.

5. Learned Additional Public Prosecutor though opposed the

criminal petition, fairly concedes that the petitioners, who are

A-3 and A-4, are only customers, who visited the brothel house

for prostitution on payment and the main persons, who are

responsible for running the said brothel house and living on the

earnings of the prostitutes, are A-1 and A-2.

6. Now it is well settled law that mere visiting the brothel

house for prostitution on payment is not an offence either under

the provisions of Immoral Traffic (Prevention) Act. There must

be an allegation that the persons are living on the earnings of

the prostitutes to hold that they are liable for prosecution for the

said offences.

7. The legal position in this regard is not res integra and the

same has been well settled. In the case of Z.Lourdiah Naidu v.

State of A.P.1, this Court held at para Nos.6 and 7 of the

judgment, as follows:

"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."

8. Similarly, in the case of Goenka Sajan Kumar v. the

State of A.P2, it is held at para Nos.4 and 5 of the judgment as

follows:

"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

2013(2) ALD (Cri) 393 = 2014(1) ALT (Cri) 322 (A.P.)

2014 (2) ALD (Cri) 264 = 2015 (1) ALT (Cri) 85 (A.P)

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 inducing 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."

9. Even the Karnataka High Court in the case of Sri

Roopendra Singh v. State of Karnataka3, also held that the

mere presence of persons at the spot during the raid, indicating

that they were the customers who had gone to the said spot

does not give rise to any criminal liability against the said

persons. In arriving at the said conclusion, the Karnataka High

Court also relied on the judgment of this Court in Goenka Sajan

Kumar2.

10. Therefore, following the dictum laid down in the aforesaid

three judgments, recently this Court in Criminal Petition

No.6733 of 2021, has quashed the proceedings against the

accused therein, who are only mere customers, who visited the