Suresh Babu @ Arakkal Arjunan ... vs The State Of West Bengal & Anr
2022 Latest Caselaw 3168 Cal

             IN THE HIGH COURT AT CALCUTTA
            CRIMINAL APPELLATE JURISDICTION
                   APPELLATE SIDE

Present:
The Hon'ble Justice Ajoy Kumar Mukherjee

                              C.R.R. 2363 of 2019

                  Suresh Babu @ Arakkal Arjunan Suresh Babu
                                      Vs.
                        The State of West Bengal & anr.


For the Petitioners     :     Mr. Tusher Kanti Mukherjee
                              Mr, Abu Abbas Uddin

For the State           :     Mr. Madhusudan Sur
                              Mr. Dipankar Paramanick

Heard on                :     6th June, 2022

Judgment on             :     13th June, 2022

Ajoy Kumar Mukherjee, J.

1. This revisional application has been filed for quashing of the proceeding

invoking power under section 482 of the Code of Criminal Procedure in

connection with G.R. Case No.18 of 2019 corresponding to charge-sheet No.83

of 2019 dated 25.3.2019 arising out of Section E. Jorasanko Police Station

Case No. 04 of 2019 dated 4.1.2019 under Sections 3/4/5/7/18 of the

Immoral Traffic (Prevention) Act 1956 (in short, I.T.(P) Act) read with Section

120B of the Indian Penal Code presently pending before the learned 15th

Metropolitan Magistrate at Calcutta and also for setting aside the order dated

21.3.2019 whereby the learned Additional Chief Metropolitan Magistrate had

taken cognizance against the present petitioner, namely, Suresh Babu @

Arakkal Arjunan Suresh Babu.

2. It is the specific case of the petitioner that the petitioner is a non-

residential Indian businessman and in course of such business issues the

petitioner visited Kolkata in the month of January, 2019. On 4.1.2019 the

petitioner was having a backache and the petitioner was looking for a place

where he can get a backache massage and had found a place on the internet

and accordingly, the petitioner had reached the place where he found a glowing

board read as the name and style of "Snowy Glow Family Saloon and Spa"

situated at 131, C.R. Avenue, Kolkata-700073 for having a massage and

accordingly, he was provided a room and a masseur. During the session

suddenly a raid was conducted and the petitioner was informed by the police

officer that the alleged place is involved with certain offences and the petitioner

is required for the purpose of investigation. Accordingly, the petitioner along

with other staff of the Spa were apprehended and taken to the local Jorasanko

Police Station and subsequently, the petitioner was informed that he was

arrested in connection with a police case registered against the said Spa for

violation of said I.T.(P) Act. Thereafter on 5.1.2019 the petitioner who was

accused No.3 along with co-accused persons were produced before the learned

Additional Chief Metropolitan Magistrate at Calcutta and upon hearing, the

petitioner was granted ad interim bail.

It is further contended that based on the aforesaid facts, Jorasanko

Police Station Case No.4 of 2019 dated 4.1.2019 was registered for

investigation and on completion of investigation the investigating officer

submitted charge-sheet being No.83 of 2019 dated 25.3.2019 and Ld.

Magistrate has taken congnizance against present petitioner and other alleged

persons under section 3,4,5,7, 18 of I.T.(p) Act read with section 120B of the

Indian Penal Code.

3. Learned Advocate for the petitioner has strenuously argued that the

petitioner at best can be termed as a customer and accordingly, he cannot be

held liable under any of the provisions of the said Act.

4. Learned Advocate representing the State submits that the petitioner was

caught red-handed from the brothel and after completion of investigation, the

investigating agency has rightly submitted charge-sheet against the petitioner

under Sections 3/4/5/7/18 of the said Act, on the basis of materials collected

during investigation. The offence under Sections 3 and 4 of the I.T.(P) Act is

established when the prosecutrix was enticed away and/or forced to carry on

the profession of prostitution.

5. The charge sheet averment discloses that on 04.01.2019, acting upon

credible source information a raid was conducted at 131, chittaranjan Avenue,

Kolkata-73 by team of AHTU/DD. During raid some incriminating articles were

seized from the said brothel after preparing proper seizure list and arrested

total 10 (ten) accused persons including 8 (eight) female accused persons.

During investigation it could be learnt that accd no.1 Rupa Das Jaiswal being

the owner cum manger of the said brothel, and she is running said brothel for

one year and six months and accused no.2 Amit Jaiswal being the pimp

procure customer and sex workers for the said brothel and accused no. 4 to 10

are sex workers and accd no. 3 that is the present petitioner Mr. Babu being a

customer was found in compromising situation inside one room of said brothel

with accused no. 4, who is a sex worker. It is specifically mentioned in the

charge sheet that accused no. 1,2 and 4 to 10 were living on the earning of

prostitution and accused no. 3 that is present petitioner being "customer" was

receiving sexual enjoyment in lieu of money.

6. As could be seen from the materials available in the case diary(CD), the

petitioner herein is a "customer" and except that nothing has been alleged

against him. In this context, it is worthy to be mentioned here that none of the

alleged offences against the petitioner herein is attributing in so far as

"customer" is concerned.

7. It is evident from the reading of the concerned provisions, that section 3

of the I.T. (P) Act is a section which provides punishment for keeping a brothel

or allowing premises to be used as brothel. Section 4 provides for punishment

of living on the earnings of the prostitution. Section 5 provides procuring

inducing or taking person for the sake of prostitution. Section 7 applies to

prostitution in or in the vicinity of public place. Section 18 deals with closure of

brothel and eviction of offenders from the premises. Section 120B of I.P.C. in

about criminal conspiracy. Accordingly what is punishable under the Act is

sexual exploitation or abuse of a person for commercial purpose and to earn

the bread thereby keeping or allowing a premises as brothel and also when a

person is carrying on prostitution in a public place or when a person is found

soliciting or seducing another person as defined under the Act.

8. I find no material in the case diary which can suggest that the present

petitioner is living on earning of the prostitution. There is no material in the

case diary that the accused/petitioner was at the material time living with the

sex worker or that he was habitual at the material time in her company. There

is nothing to show that the petitioner exercised control, direction or influence

over her movement in the way, which can be shown to be aiding or abetting her

sex work. Mere visiting the house of sex worker as customer cannot be

presumed to be living on earnings of sex workers. To invoke the presumption

it must be shown that he was found in the company of the sex worker on some

other occasion.

9. In the present case, it is the specific case of the petitioner that he used to

stay abroad and it further appears from the statement of the petitioner as

recorded under Section 161 of the Cr.P.C. that on the date of occurrence he

was returning from Dubai via Kolkata. He also stated in the 161 statement

that on payment to one Rupa, he went to cubicle with sex worker and at that

time raid was conducted by the police authorities.

10. This statement of the petitioner recorded under Section 161 Cr.P.C. also

finds support in the statement of concerned sex worker i.e. accused No. 4 with

whom present petitioner was allegedly found in compromising situation and

also corroborates with the statement of other witnesses recorded by the police

under Section 161 Cr. P.C. Statement of accd no. 4 shows that she was

voluntarily having sex with present petitioner in lieu of money.

11. On perusal of the charge-sheet it also appears that the accused nos.1, 2

and 4 to 10 were living on the earning of prostitution. Accused no.3, that is

the present petitioner was the "customer" who was receiving sexual enjoyment

in lieu of money where accused no.1 was running the brothel.

12. So far materials available in the C.D. in respect of present petitioner

(accused serial no. 3), section 3,4,5,17 of I.T. (P) Act and section 120B of I.P.C.

does not attract. So far as section 7 of the I.T. (P) Act is concerned, it relates to

carrying on prostitution by any person and the person with whom such

prostitution is carrying on in a premises within a notified area. From the

materials in C.D. including sketch map of the place of occurrence it does not

disclose that the place, where Raid was conducted is a notified area or in an

area as described in section 7(b) where present petitioner as "customer" can be

said to carrying on prostitution with accused serial no. 4.

13. In view of the aforesaid materials as collected by the Investigating

authority during investigation it is clear that the petitioner on the date of

occurrence came from Dubai and according to the prosecution story he has

paid money to the accused no.1 Rupa Das Jaiswal being the alleged owner cum

manager of the alleged brothel and according to the prosecution case, he was

merely a casual customer who had gone there for sexual enjoyment on

payment basis.

14. Prostitution per se is not prohibited under I.T. (P)Act but it is also equally

true that a "customer" may virtually encourages prostitution and may exploit

the sex worker for money but in the absence of any specific allegation and

materials, I have serious doubt as to how present petitioner (accused no.3) who

is according to prosecution case merely a "customer" can be convicted with the

help of materials in C.D. and under the said provisions of law. From the

statement of witness, specially statement of accused no. 4 (sexworker) as

recorded under section 161 Cr. P.C., there is hardly any scope to say that

present petitioner as "customer" had exploited the accused no. 4 or said

customer/petitioner encourages anyone for prostitution.

15. Having regard to the facts and circumstances of the present case and

considering the materials that the petitioner was found in the alleged brothel

as customer and that on the date of occurrence he only went there after

coming from Dubai to have sex with a sex worker in lieu of money and in the

absence of any evidence that he is living on the earning of any of the

accused/sex worker or is a habitual visitor of the said place and thereby has

exercised control, direction or influence over the movement of any of the sex

worker against which can be said to be aiding or abetting their sex work or that

he was habitually living with any of the accused sex worker, I find that the

sections in which the cognizance has been taken by the Magistrate against the

present petitioner is bad in law and the said cognizance is taken without

considering the materials in the case diary.

16. In view of the aforesaid discussion, the aforesaid G.R. Case No.18 of

2019 corresponding to Charge-Sheet No. 83 of 2019 dated 25.3.2019 in respect

of the present petitioner is quashed and the cognizance taken by the

Magistrate against the present petitioner in respect of the offence under

Section 3/4/5/7/18 of and the order dated 21.3.2019 is hereby set aside.

17. Accordingly, C.R.R. 2363 of 2019 is allowed.

There will be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the

parties on usual undertakings.

(AJOY KUMAR MUKHERJEE, J.)