High Court of Meghalaya

Shri Sunil Kumar Singha vs . State Of Meghalaya & Ors. on 22 August, 2022

Serial No. 01 & 02
Regular List

                        HIGH COURT OF MEGHALAYA
                               AT SHILLONG

Crl. Petn. No. 7 of 2022 with
Crl. Petn. No. 8 of 2022
                                                  Date of Decision: 22.08.2022
Shri Sunil Kumar Singha               Vs.            State of Meghalaya & Ors.
Shri Rami Sinha                       Vs.            State of Meghalaya & Ors.
Coram:
             Hon'ble Mr. Justice W. Diengdoh, Judge

Appearance:
In Crl. Petn. No. 7 of 2022
For the Petitioner/Appellant(s)   :        Mr. P.Yobin, Adv.
For the Respondent(s)             :        Mr. H. Kharmih, Addl. P. P
In Crl. Petn. No. 8 of 2022
For the Petitioner/Appellant(s)   :        Mr. P.Yobin, Adv.
For the Respondent(s)             :        Mr. H. Abraham, GA

i)    Whether approved for reporting in                       Yes/No
      Law journals etc.:

ii)   Whether approved for publication
      in press:                                               Yes/No


                         JUDGMENT AND ORDER

1.       On 18.10.2021, a complaint was lodged by one Women Police Sub-

Inspector(WP/SI) K. R. Marak before the Officer In-Charge, Sadar Police

Station, Shillong to the effect that on the same day, at about 6.30 pm two

police personnel in plain clothes, while performing their duties at Jail Road

and Police Bazar area spotted one girl and two males talking near Vishal


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 Mega Mart after which one of them went with the girl to the compound

behind J.K. International Hotel, Jail Road which is suspected to be an area

where brothel and places for soliciting sex workers for prostitution takes

place. The said police personnel then followed the girl and her companions

and saw them entered a room. Later, a search was conducted and the said girl

was found to be in the company of Rami Sinha and Sunil Kr. Singha.


2.       Accordingly, on receipt of the said complaint, a case was registered

being Shillong Sadar P.S Case No. 240(10) 2021 under Sections

3(2)(a)(b)/4(1) of the Immoral Traffic (Prevention) Act, 1956 and initially

four persons were arrested in connection with the said case, including the

two petitioners herein. Later, another person was also arrested in this case.

The girl, it appears is a minor. The stage of the case is under investigation.


3.       Being aggrieved on account of being implicated in the said case, the

petitioners herein have approached this Court with separate petitions under

Section 482 Cr.P.C. praying before this Court to exercise its inherent power

to quash the said complaint dated 18.10.2021 and the related Shillong Sadar

P.S. Case No. 240(10) 2021.


4.       Since the subject matter in the two petitions are identical inasmuch

as the cause of action is the said complaint dated 18.10.2021(supra), this

Court deems it fit and proper to take up the two petitions and to pass a

common order herein.



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 5.       Heard Mr. P. Yobin learned counsel for the petitioners who has

submitted that the petitioners have been implicated in the above mentioned

police case on the allegation that they have been found to be in the company

of a girl for the purpose of prostitution which has therefore, attracted the

provisions of Section 3(2)(a)(b) as well as Section 4(1) of the Immoral

Traffic (Prevention) Act, 1956.


6.       Mr. Yobin has also submitted that being found in the company of a

girl is not an offence and even if assuming but not admitting that the

allegation of being involved in prostitution is well founded, at best, the

petitioners could be treated only as customers. The offences under Section

3(2)(a)(b) as well as Section 4(1) of the Immoral Traffic (Prevention) Act

cannot be attracted or attributed to them.


7.       In support of his contention, the learned counsel has cited the case

of Pravin Rana v. State of Karnataka: 2019 SCC Online Kar 3067 and

also the case of Dilip Jana v. State of West Bengal: 2009 SCC Online Cal

1569 where, in similarly situated cases as the instant case, the Hon'ble High

Court reading into the provisions of Section 3, 4, 5, 6 and 7 of the Immoral

Traffic (Prevention) Act, vis-a-vis the fact that the accused therein was found

to be a customer of prostitution and in the case of Dilip Jana (supra), where

the accused was caught red-handed by the police in the presence of

independent witnesses from a hotel, while he was carrying on prostitution,




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 the Court found that no offence under Section 3, 4, 5 & 6 has been made out

against the petitioner therein.


8.       It is submitted that the FIR as far as the petitioners are concerned,

be set aside and quashed as the allegations in the FIR does not disclose any

offence committed by the petitioners herein.


9.       Mr. H. Kharmih, learned Addl. P. P has submitted that the case

against the petitioners have been registered under clause (a) of sub-section 2

of Section 3 and sub-section 1 of Section 4 of the Immoral Traffic

(Prevention) Act, 1956.


10.      The petitioners came to Shillong for the purpose of a recruitment

rally in the Assam Rifles and they stayed at Sneha Kutir, Jail Road behind

J.K. International Hotel, Jail Road. The petitioners, on a raid being conducted

by the police at places suspected to be brothel and places where prostitution

is being carried out, were found to be in the company of a girl in the room

occupied by them. According to the learned Addl. P. P, the fact that they are

occupier of the said room which was used as a brothel, they are, therefore,

liable under the offences alleged against them.


11.      Another limb of argument raised by the learned Addl. P. P is that

under Section 5 of the said ITP Act, the fact that the petitioners have procured

the said girl with or without her consent for the purpose of prostitution, their




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 action is therefore, attracted by this provision and as such, they are liable to

be prosecuted.


12.      Referring to the seizure lists in the records, the learned Addl. P. P

has submitted that the police have also seized from the room where the

petitioners were found, a number of condoms and currency notes which only

fortify the assertion that they are involved in prostitution. It is, therefore,

prayed that these petitions are devoid of merits and may be dismissed.


13.      Mr. H. Abraham, learned GA appearing on behalf of the State

respondent in Crl. Petn. No. 30 of 2022 has endorsed the submission of the

learned Addl. P. P and has further submitted that besides the fact that the

petitioners were caught in the act of prostitution, the girl in question was

found to be a minor and as such, in course of investigation, the relevant

provisions of the POCSO Act may be added, the petitioners may not be let

off at this stage and the case be allowed to proceed in due course.


14.      The submission and contention of the parties have been

thoughtfully considered by the Court in this matter. What is required to be

established is whether the petitioners have been able to make out a case for

quashing of the said FIR and proceedings by exercise of powers under

Section 482 Cr.P.C.


15.      Facts

as stated above need not be reiterated, suffice it to say that the

petitioners were arrested on being found in the presence of a girl from a room

suspected to have been used for the purpose of prostitution. The police acting

on a complaint have arrested five persons in all, including the two petitioners

herein. The relevant provisions of the Immoral Traffic (Prevention) Act,

1956 directed against the petitioners are Section 3(2)(a)(b) and 4(1) of the

said Act.

16. For easy reference, the above-mentioned provisions are extracted

herein as:

"3. Punishment for keeping a brothel or allowing premises to be used as a brothel. --

(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 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.

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 [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]."

17. The learned Addl. P. P who has laid stress on the point that in view

of the provision of Section 3(2) (a) of the Act, the petitioners being caught

in the room with the girl can be said to be 'occupier' to come within the

meaning of clause (a) of sub-section 2 of Section 3, and for which they can

therefore be prosecuted for keeping a brothel within the broad meaning of

Section 3 cannot be accepted by this Court since this line of argument has

constricted the intent and purpose of the objective of Section 3 as far as the

meaning of 'occupier' is concerned. In this regard, the Hon'ble Madras High

Court in the case of Suseela v. State: 1982 CRI. L. J. 702 has held that

when the prosecution proved the presence of only one girl in the premises

and a single instance of prostitution, the premises cannot be held to be "used

for brothel". Solitary instance of prostitution in a place does not make the

place a "brothel".

18. In the case of Nagaraju B J @ Raju v. State of Karnataka cited

by the petitioners, the Hon'ble Karnataka High Court, under similar facts and

circumstances as the case of the petitioners herein has also observed that

"...A person who visits brothel house only as a customer is not covered by

any of the above provisions or any other provision of the ITP Act, 1956..."

19. In view of the authority laid down by the Hon'ble Madras High

Court in the case of Suseela (supra), on bare reading of the FIR against the

petitioners herein, it can be presumed that they could not have used the said

room as a brothel, not to speak of the fact that there is no evidence that they

are living on the earnings of prostitution. As for the contention of the

respondents that Section 5 of the ITP Act is attracted as far as the action of

the petitioners are concerned, in this regard, reference can be made to the

case of Suresh Babu @ Arakkal Arjunan Suresh Babu v. The State of

West Bengal & Anr. wherein in C.R.R. 2363 of 2019, the Hon'ble Calcutta

High Court vide order dated 13.06.2022, in a case where the facts and

circumstances are almost similar to the case herein, where the petitioner

therein who was on a visit to Kolkata, on 04.01.2019 had visited a place

called ' Snowy Glow Family Saloon and Spa' for a massage and during the

session, a raid was conducted by the police where he along with others were

apprehended and arrested, he was later informed by the police that a case

has been registered against the said Spa for violation of provisions of

Sections 3, 4, 5, 7, 18 of ITP Act, read with Section 120B IPC, he being one

of the accused therein. Upon approaching the High Court with a petition

under Section 482 Cr.PC, vide the order mentioned above, the High Court at

paras 14 and 15 of the same has observed as follows:

"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 (sex worker) 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 dairy."

20. The final argument raised by the respondents is that the girl in

question is a minor and as such, the petitioners are liable under the relevant

provision of the POCSO Act, cannot be taken cognizance of by this Court

inasmuch as there is nothing in the FIR or the subsequent investigation

wherein any provision under the POCSO Act was alleged to have been

violated by the petitioners herein. The same is therefore, not the subject

matter of the issues present in these proceedings.

21. In view of the observations made above, this Court is persuaded to

come to the conclusion that nothing in the FIR discloses any offence against

the petitioners herein and as such, the inherent power under Section 482

Cr.P.C. can be exercised in this regard.

22. These two petitions are accordingly found within merits and the same