Andhra Pradesh High Court - Amravati
Shaik Ajmatulla vs The State Of Andhra Pradesh on 19 April, 2023
Bench: K Sreenivasa Reddy
THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY
CRIMINAL PETITION NOs. 8675 OF 2022, 1190 OF
2023, 1806 OF 2023 & 1959 OF 2023
COMMON ORDER :
Since common issue arises in all the Criminal
Petitions, they are being taken up for disposal together
by way of this common order.
2. (a) Criminal Petition No.8675 of 2022 is filed
seeking to quash the proceedings in P.R.C. No.16 of
2022 on the file of the VI Metropolitan Magistrate,
Vijayawada, by the petitioners/A.3 to A.6 respectively,
for the offence punishable under Section 370A (2) of the
Indian Penal Code, 1860 (IPC).
(b) Criminal Petition No.1190 of 2023 is filed
seeking to quash the proceedings in crime No.855 of
2022 of Krishnalanka police station, Vijayawada, by the
petitioners/A.2 and A.3, registered for the offences
punishable under Sections 370 A (2) IPC and 3, 4, 5 and
7 of the Immoral Traffic (Prevention) Act, 1956 (for short,
„the Act, 1956‟).
2
(c) Criminal Petition No. 1806 of 2023 is filed
seeking to quash the proceedings in S.C.No.181 of 2022
on the file of the V Additional Sessions Judge-cum-
Special Court for trial of offences against Women, Eluru,
registered for the offences punishable under Sections
370 IPC and 3 and 4 of the Act, 1956, by the
petitioner/A.2.
(d) Criminal Petition No.1959 of 2023 is filed
seeking to quash the proceedings in crime No.476 of
2021 of Arundalpet police station, Guntur district, by the
petitioner/A.7, registered for the offences punishable
under Sections 188, 269, 370, 370 A (2) IPC and 3 (1), 4
(1), 5(1) (a) of the Act, 1956.
3. In the aforesaid cases, customers are being
prosecuted for the aforesaid offences. The present
Criminal Petitions are filed by the respective petitioners,
who are arrayed as accused in the respective crimes, as
stated supra, to quash the aforesaid proceedings as
against them on the ground that a customer would not
3
come within the purview of the offences under Sections
3, 4 and 5 of the Act, 1956 and 370 and 370A IPC and
hence, cannot be prosecuted for the aforesaid offences.
4. On the other hand, the learned Special Assistant
Public Prosecutor Sri Soora Venkata Sainath strenuously
contended that prima facie a case for the offence under
Section 370A IPC would be made out as against a
customer, as in all the cases, more or less, the
customer(s) were caught red-handed by the officials at
the time of their raid, and whether the case is one of
attempt, or to commit an offence or preparation, would
be the subject matter of investigation or trial, as the case
may be, and at this stage, this Court, in a petition under
Section 482 CrPC, would not be in a position to conduct
a roving enquiry to go into these details.
5. Originally, in cases of this nature, police were
registering cases under Sections 3, 4 and 5 of the Act,
1956. Contention of the learned counsel for the
petitioners is that the offences under Sections 3 and 5 of
4
the Act, 1956 would not be made out as against the
customers, for the reason that the Act, 1956 is silent as
to the offences committed by the customers, who visit
the house of victim.
6. Section 3 of the Act, 1956 reads thus:
"3. Punishment for keeping a brothel or allowing
premises to be used as a brothel.--
(1) Any person who keeps or manages, or acts or
assists in the keeping or management of, a brothel
shall be punishable on first conviction with rigorous
imprisonment for a term of not less than one year
and not more than three years and also with fine
which may extend to two thousand rupees and in
the event of a second or subsequent conviction, with
rigorous imprisonment for a term of not less than
two years and not more than five years and also
with fine which may extend to two thousand rupees.
(2) Any person who--
(a) being the tenant, lessee, occupier or person in
charge of any premises, uses, or knowingly allows
any other person to use, such premises or any part
thereof as a brothel, or
(b) being the owner, lessor or landlord of any
premises or the agent of such owner, lessor or
landlord, lets the same or any part thereof with the
5
knowledge that the same or any part thereof is
intended to be used as a brothel, or is wilfully
a party to the use of such premises or any part
thereof as a brothel, shall be punishable on first
conviction with imprisonment for a term which may
extend to two years and with fine which may extend
to two thousand rupees and in the event of a second
or subsequent conviction, with rigorous
imprisonment for a term which may extend to five
years and also with fine.
(2A) For the purposes of sub-section (2), it shall be
presumed, until the contrary is proved, that any
person referred to in clause (a) or clause (b) of that
sub-section, is knowingly allowing the premises or
any part thereof to be used as a brothel or, as the
case may be, has knowledge that the premises or
any part thereof are being used as a brothel, if,--
a. a report is published in a newspaper having
circulation in the area in which such person resides
to the effect that the premises or any part thereof
have been found to be used for prostitution as a
result of a search made under this Act; or
b. a copy of the list of all things found during the
search referred to in clause (a) is given to such
person.
(3) Notwithstanding anything contained in any
other law for the time being in force, on conviction of
any person referred to in clause (a) or clause (b) of
6
sub- section (2) of any offence under that sub-
section in respect of any premises or any part
thereof, any lease or agreement under which such
premises have been leased out or are held or
occupied at the time of the commission of the
offence, shall become void and inoperative with
effect from the date of the said conviction."
Section 4 of the Act, 1956 reads thus:
"4. Punishment for living on the earnings of
prostitution.--
(1) Any person over the age of eighteen years
who knowingly lives, wholly or in part, on the
earnings of the prostitution of any other person
shall be punishable with imprisonment for a
term which may extend to two years, or with fine
which may extend to one thousand rupees, or
with both 2[and where such earnings relate to
the prostitution of a child or a minor, shall be
punishable with imprisonment for a term of not
less than seven years and not more than ten
years.
(2) Where any person over the age of eighteen
years is proved--
(a) to be living with, or to be habitually in the
company of, a prostitute; or
7
(b) to have exercised control, direction or
influence over the movements of a prostitute in
such a manner as to show that such person is
aiding, abetting or compelling her prostitution;
or
(c) to be acting as a tout or pimp on behalf of a
prostitute, it shall be presumed, until the
contrary is proved, that such person is
knowingly living on the earnings of prostitution
of another person within the meaning of sub-
section (1)."
7. Section 3 of the Act, 1956 deals with punishment
for keeping a brothel or allowing premises to be used as
a brothel. Section 4 of the Act, 1956 would attract only
to a person who, knowingly lives on the earnings of
prostitution of any other person. So, viewed from any
angle, the offence punishable under Section 4 of the Act,
1956 would not attract as against a customer. This
Section is meant to punish those persons who are living
on the earnings of the prostitute. It cannot be invoked
for prosecuting the persons who visit the said premises.
Answering this question would not be difficult because
the issue is no longer res integra for the reason that this
8
Court, in its Order dated 12.06.2013 in Criminal Petition
No.408 of 2011, passed an order to the extent that the
customer would not come within the purview of Sections
3 and 4 of the Act, 1956. Accordingly, the proceedings
as against the petitioners in respect of offences under
Sections 3 and 4 of the Act, 1956 are not maintainable.
8. Police are registering cases as against a customer
for the offences punishable under Sections 3, 4 and 5 of
the Act, 1956 along with Section 370 IPC.
"5. Procuring, inducing or taking person for the sake of
prostitution.--
(1) any person who--
(a) procures or attempts to procure a person,
whether with or without his consent, for the
purpose of prostitution; or
(b) induces a person to go from any place, with the
intent that he may for the purpose of prostitution
become the inmate of, or frequent, a brothel; or
(c) takes or attempts to take a person, or causes a
person to be taken, from one place to another with a
view to his carrying on, or being brought up to carry
on prostitution; or
(d) causes or induces a person to carry on
prostitution;
9
shall be punishable on conviction with rigorous
imprisonment for a term of not less than three years
and not more than seven years and also with fine
which may extend to two thousand rupees and if
any offence under this sub-section is committed
against the will of any person, the punishment of
imprisonment for a term of seven years shall extend
to imprisonment for a term of fourteen years:
Provided that if the person in respect of whom an
offence committed under this sub-section,--
1.
is a child, the punishment provided under this sub-
section shall extend to rigorous imprisonment for a
term of not less than seven years but may extend to
life; and
2. is a minor, the punishment provided under this
sub-section shall extend to rigorous imprisonment
for a term of not less than seven years and not more
than fourteen years;]
(3) An offence under this section shall be triable--
(a) in the place from which a 1[person] is procured,
induced to go, taken or caused to be taken or from
which an attempt to procure or take such 1[person]
is made; or
(b) in the place to which he may have gone as a
result of the inducement or to which he is taken or
caused to be taken or an attempt to take him is
made."
9. Section 370 IPC reads thus:
"Section 370 of the Indian Penal Code
Whoever, for the purpose of exploitation, (a) recruits,
(b) transports, ( c) harbours, (d) transfers, or (e)
receives, a person or persons, by--
1. using threats, or
2. using force, or any other form of coercion, or
3. by abduction, or
4. by practising fraud, or deception, or
5. by abuse of power, or
6. by inducement, including the giving or receiving of
payments or benefits, in order to achieve the
consent of any person having control over the
person recruited, transported, harboured,
transferred or received, commits the offence of
trafficking1.
Explanations
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.
2. The consent of the victim is immaterial in
determination of the offence of trafficking1.
(2) Whoever commits the offence of trafficking shall
be punished with rigorous imprisonment for a term
which shall not be less than seven years, but which
may extend to ten years, and shall also be liable to
fine.
(3) Where the offence involves the trafficking1 of
more than one person, it shall be punishable with
rigorous imprisonment for a term which shall not be
less than ten years but which may extend to
imprisonment for life, and shall also be liable to fine.
(4) Where the offence involves the trafficking of a
minor, it shall be punishable with rigorous
imprisonment for a term which shall not be less
than ten years, but which may extend to
imprisonment for life, and shall also be liable to fine.
(5) Where the offence involves the trafficking of more
than one minor, it shall be punishable with rigorous
imprisonment for a term which shall not be less
than fourteen years, but which may extend to
imprisonment for life, and shall also be liable to fine.
(6) If a person is convicted of the offence of
trafficking of minor on more than one occasion, then
such person shall be punished with imprisonment
for life, which shall mean imprisonment for the
remainder of that person‟s natural life, and shall
also be liable to fine.
(7) When a public servant or a police officer is
involved in the trafficking of any person then, such
public servant or police officer shall be punished
with imprisonment for life, which shall mean
imprisonment for the remainder of that person‟s
natural life, and shall also be liable to fine."
A plain reading of the aforesaid provision goes to
show that the main object of the provision is prevention
of exploitation of a girl or a woman. It makes very clear
that whoever, for the purpose of exploitation, recruits,
transports, harbours, transfers or receives a person 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, commits the offence of
trafficking. The Section has been enacted by the
Legislature with the avowed object of preventing sexual
exploitation of a girl or woman. The provision makes it
very clear that whoever, for the purpose of exploitation,
recruits, transports, harbours, transfers or receives any
girl or woman for the purpose of sexual exploitation,
such person is guilty of the offence under Section 370
IPC. The provision also makes it very clear that the
consent of the victim is not material in determination of
the offence of traffic. The expression „exploitation‟
includes any act of physical exploitation or any form of
sexual exploitation, slavery or practices similar to
slavery, servitude, or the forced removal of organs.
10. In Vinod @ Vijay Bhagubhai Patel v. State of
Gujarat,1 it is held thus: (paragraphs 25, 26 and 27).
25. I find it extremely difficult to take the view that
a customer at a brothel is not covered within the
provision of Section 370 of the Penal Code, 1860. A
customer at a brothel could be said to receive the
victim. I see no good reason why the customer
should be kept out of Section 370 of the Penal Code,
1860.
26. However, I should sound a note of caution at
this stage. I am dealing with a very important issue
and this judgment may have its own implication. At
this stage, my attention is drawn by Mr. Nanavati,
the learned counsel appearing for the applicant, to a
clarification issued by Justice Verma Commission
on the intent of Section 370 of the Penal Code,
1860.
27. The clarification was sought in the following
words:
"Dear Ms. Seshu
2017 SCC OnLine Guj 446
The Committee, in its report of January 23, 2013,
proposed certain amendments to Section 370, IPC, to
introduce a definition of the offence of „trafficking‟
into the IPC and the punishment thereof. The
Committee also notes that the Ministry of Law and
Justice, Government of India, by way of the Criminal
Law (Amendment) Ordinance, 2013 („Ordinance‟),
dated February 3, 2013, has amended Section 370 of
the IPC in terms of the Committee's recommendations.
The Committee, however, notes your
representation on behalf of the National Network of
Sex Workers to the effect that the Section 370, IPC,
after being amended by the Ordinance, could be
misused by police and other governmental authorities
to harass (i) sex workers who engage in prostitution
of their own volition, and not pursuant to inducement,
force or coercion, as the amended Section 370
provides, and (ii) the clients of such sex workers, by
bringing the act of gratification for a sex worker's
services under the scope of the amended Section 370.
The members of the Committee wish to clarify that
the thrust of their intention behind recommending the
amendment to Section 370 was to protect women and
children from being trafficked. The Committee has not
intended to bring within the ambit of the amended
Section 370 sex workers who practice of their own
volition. It is also clarified that the recast Section 370
ought not to be interpreted to permit law-enforcement
agencies to harass sex workers who undertake
activities of their own free will, and their clients. The
Committee hopes that law enforcement agencies will
enforce the amended Section 370, IPC, in letter and in
spirit.
Yours sincerely
Abhishek Tewari
Advocate
Counsel to the Committee""
11. A plain reading of the aforesaid provision goes to
show that in case where a sex worker engages in
prostitution out of her free will without there being any
inducement, force or coercion, in such a case, there is
any amount of ambiguity whether the customer would
come within the purview of Section 370 IPC or not. This
Court is of the view that it would still be a question of
fact whether the woman is carrying on the said
profession out of her free will or not. In generic, going by
the traditions of the country, no woman would get into
the said profession by choice unless and until she being
forced to get into the said profession. Here, the view of
this Court is whether it is out of free will or not, would
remain a question of fact and the same has to be decided
in the course of trial.
12. Police are registering cases as against a customer
for the offence punishable under Section 370 A IPC,
which contemplates punishment for exploitation of a
trafficked person. Section 370 A IPC reads thus:
"Section 370A:- Exploitation of a trafficked person
(1) Whoever, knowingly or having reason to believe
that a minor has been trafficked, engages such
minor for sexual exploitation in any manner, shall
be punished with rigorous imprisonment for a term
which shall not be less than five years, but which
may extend to seven years, and shall also be liable
to fine.
(2) 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
liable to fine."
A perusal of the aforesaid provision goes to show
that under Section 370A (1) IPC, whoever knowingly
engages a minor for sexual exploitation in any manner,
would be punishable. Sub-section (2) of Section 370A
IPC categorically contemplates that if any person
engages any other person for sexual exploitation, he
would be punishable.
13. This Court feels that there is no ambiguity in sub-
section (2) of Section 370 A IPC. My view has been
observed in S.Naveen Kumar @ Naveen v. State of
Telangana2, wherein it is held thus:
"It shall be noted that in the wake of gang rape of
Nirbhaya in Delhi which arose an unprecedent public
furore, Government considered it fit to drastically amend
several provisions of IPC and in that direction appointed
a Committee under the Chairmanship of late Justice
J.S.Varma, the former Chief Justice of India. The
Committee after interacting cross sections of stake
holders submitted its detailed report suggesting
amendments and introduction of various provisions in
penal laws like IPC, Cr.P.C., Evidence Act, etc.
Consequent upon the said report, sub-clause (2) of
Section 370 IPC was amended and Section 370A IPC was
introduced. Having regard to the avowed object with
which report was submitted and amendments and new
provisions were introduced in several Acts, it cannot be
2015 SCC OnLine Hyd 154= (2015) 2 ALD (Cri) 156
presumed for the moment that Legislators considered
customer as an innocent victim in the flesh trade.
Therefore, Section 370 A takes in its fold the customer
also. So, despite the police charge sheeting
petitioner/A.3 only for the offence under Section 4 of PIT
Act and the Committal Court accepting the same, it is
evident from the charge sheet that the petitioner/A3 is
prima facie liable for the charge under Section 370 A
though not under Section 4 of the PIT Act with which he
was charge sheeted."
In the aforesaid decision, this Court has taken a
view that „customer‟ would come within the ambit of
Section 370A IPC since the object of the committee
under the Chairmanship of late Sri Justice J.S.Verma
had interacted with cross sections of stake holders and
after hearing them, suggested several amendments and
introduction of various provisions in penal laws with an
object of preventing the said nefarious activities. When
the object of the committee is to prevent this kind of
nefarious activities, there is no reason as to why a
customer can be considered to an innocent victim in the
flesh trade.
Another single Judge of this Court reiterated the
same in its Order dated 27.06.2018 in Criminal Petition
No.5803 of 2018 in Mohammad Riyaz v. State of
Telangana, wherein the proceedings for the offences
under Sections 3 to 5 of the Act, 1956 and Section 370
IPC were quashed, directing the Court below to proceed
with the offence punishable under Section 370 A (2) IPC.
14. On the contrary, this Court in its Order dated
29.11.2021 in Criminal Petition No.6733 of 2021, relying
upon a judgment in Goenka Sajan Kumar v. State of A.P.
(2014 (2) ALD (Cri) 264), quashed the proceedings under
Sections 3 to 5 of the Act, 1956 and 370 A (2) IPC. A
learned single Judge of this Court in Dinesh Kumar
Chowdary v. State of A.P. (Order dated 26.08.2022 in
Criminal Petition No.6634 of 2022), relying upon the
observations made in the aforesaid Order dated
29.11.2011 in Criminal Petition No.6733 of 2021 and
decision in Z.Lourdiah Naidu v. State of A.P. (2013 (2)
ALD (Cri) 393), quashed the proceedings under Sections
3 to 5 of the Act, 1956 and 370 A (2) IPC. The same has
been reiterated by the learned single Judge in the Order
dated 16.09.2022 in Criminal Petition No.4771 of 2022.
15. This Court, for the foregoing reasons, is in
agreement with the views taken by the learned single
Judges of this Court in S.Naveen Kumar @ Naveen v.
State of Telangana and in the Order dated 27.06.2018 in
Criminal Petition No.5803 of 2018 in Mohammad Riyaz
v. State of Telangana, and holds that a customer comes
within the purview of offence under Section 370A IPC.
16. Whereas, from the foregoing discussion, it is clear
that conflicting decisions were rendered by other learned
single Judges of this Court in the Order dated
29.11.2021 in Criminal Petition No.6733 of 2021, and in
Dinesh Kumar Chowdary v. State of A.P. (Order dated
26.08.2022 in Criminal Petition No.6634 of 2022), and in
the Order dated 16.09.2022 in Criminal Petition No.4771
of 2022, wherein it was held that customer will not be
held liable for the offence under Section 370A IPC and
consequently the proceedings under Section 370A IPC
were quashed. In view of the conflicting orders passed
by the learned single Judges of this Court, to put a
quietus to the issue, it is desirable to refer the matter to a
Division Bench for an authoritative pronouncement and
to attain finalty as whether a customer can be brought
into purview of Sections 370 and 370A IPC.
17. Registry is directed to place the matter before the
Hon‟ble the Chief Justice for constitution of an
appropriate Bench for deciding the reference „whether, in
a case registered for the offences under Sections 3 to 7 of
the Immoral Traffic (Prevention) Act, 1956, a customer
can be prosecuted for the offences under Sections 370 or
370A of the Indian Penal Code, 1860 ?‟
___________________________________
JUSTICE K. SREENIVASA REDDY
19 .4.2023.
DRK
THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY
CRIMINAL PETITION NOs. 8675 OF 2022, 1190 OF
2023, 1806 OF 2023 & 1959 OF 2023
19.04.2023
DRK
