Telangana High Court

Bula Akhil vs The State Of Telangana And Another on 18 November, 2021

Bench: G Sri Devi

            HONOURABLE JUSTICE G. SRI DEVI

           CRIMINAL PETITION No.8497 of 2021

ORDER:

This Criminal Petition, under Section 482 of the Code of

Criminal Procedure, 1973, is filed by the petitioner /A-3, to

quash the proceedings against him in Crime No.802 of 2021

on the file of KPHB Colony Police Station, Cyberabad, Ranga

Reddy District, registered for the offences punishable under

Section 370A of the Indian Penal Code, 1860 (for short 'IPC')

and Sections 3, 4 and 5 of the Prevention of Immoral Traffic

Act, 1956 (for short 'the Act, 1956')

2. The contents of the complaint as well as remand case

diary would reveal that, on receipt of credible information, the

complainant - Sub Inspector of Police, KPHB Colony Police

Station after obtaining permission from the ACP, Kukatpally

and after securing presence of two mediators proceeded to the

MIG 87/1, 2nd floor, Road No.1, KPHB Colony, conducted raid

and when questioned A-1 who is running brothel house in the

name of Pearls Beauties Saloon @ SPA Centre revealed that

he is running the same since last five years with the help of

A-2 who is offering male customers in order to run brothel

house, wherein A-3 found indulging sexual assault with the

victim. When questioned, A-1 to A-3 admitted their guilt of

indulging the sexual assault with the victim by paying

amount, and thereby all the accused committed the aforesaid

offences.

3. The learned counsel for the petitioner would submit

that the petitioner herein is an innocent of the offences

alleged against him and he was implicated in the above crime

as he is no way connected with the offences alleged against

him. He would further submit that the contents of the

complaint do not attract the ingredients of the offences

alleged against the petitioner and, therefore, the proceedings

against him can be quashed. According to him, there is no

regulation or order issued by the Government and the same

was violated by the petitioner herein as alleged by the

complainant in the complaint and, therefore, in the absence

of the same, the proceedings for the offence under Section -

188 of IPC are also liable to be quashed.

4. The learned Assistant Public Prosecutor would submit

that the offence punishable under Section - 370A of IPC

would get attracted as held by the High Court for the States of

Telangana and Andhra Pradesh in S. Naveen Kumar v. The

State of Telangana1.

5. A perusal of the contents of remand report would show

that accused Nos.1 and 2 procured the victims for

participating in prostitution with the customers i.e., accused

. 2015 (2) ALD (Crl.) 156 (AP)

No.3. Thus, accused Nos.1 and 2 have committed an offence

punishable under Section - 370A of IPC and Sections - 3 to 5

of the Act, 1956, and accused No.3 has committed an offence

punishable under Sections - 3 to 5 of the Act, 1956.

6. In S. Naveen Kumar (Supra), a learned Single Judge in

an alike-situation, where the customer alleged to have

committed the offences punishable under Section - 370A of

IPC and Sections - 3, 4 and 5 of the Act, 1956 having dealt

with the provisions of Section - 4 of the Act and Section -

370A of IPC quashed the proceedings in the PRC for the

offence under Section - 4 of the Act, 1956. But, however,

directed the learned Committal Magistrate Court to take

cognizance under Section - 370A of IPC against the petitioner

- accused No.3 therein. The observations in paragraph Nos.6,

7 and 8 of the said judgment are relevant and the same are

extracted hereunder:

"6. .......... As rightly argued, Section 4 basically deals with the persons who lives on the earnings of the prostitution. Therefore, there is any amount of force in the submission of learned counsel for petitioner that a customer to flesh trade cannot be treated as offender under Section 4 of PIT Act. This aspect was no more res integra since at least two judgments of this High Court i.e. Goenka Sajan Kumar vs. The State of A.P. [2014 (2) ALD (Cri) 264] and Z. Lourdiah Naidu vs. State of Andhra Pradesh [2013 (2) ALD (Cri) 393] establish the same. Therefore, criminal proceedings against the petitioner/A3 for the offence under Section 4 of PIT Act are no doubt liable to be quashed.

b) However, that is not end of the matter. A perusal of the charge sheet would show that the police while charge sheeting A1 and A2 for the offences under Sections 3, 4, 5 and 6 of PIT Act and under Section 370A IPC, surprisingly charge sheeted petitioner/A3 only under Section 4 of PIT Act, but not under Section 370A IPC.

Section 370A 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.

c) The phraseology engages such minor/such person for sexual exploitation in any manner employed in sub-sections (1) and (2) of Section 370A IPC in clear terms indicates that the flesh customer who hires the victim woman for sexual exploitation also falls within the fold of Section 370A as an offender.

d) 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. Verma, 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 presumed for the moment that Legislators considered customer as an innocent victim in the flesh trade. Therefore, Section 370A takes in its fold the customer also. So, despite the police charge sheeting petitioner/A3 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 charge under Section 370A though not under Section 4 of PIT Act with which he was charge sheeted.

7. Now, the crucial question is whether the High Court in its inherent power under Section 482 Cr.P.C. while quashing the proceedings against the petitioner/A3 for the offence under Section 4 of PIT Act can direct the Committal Court to take cognizance of offence under section 370A IPC against him.

a) In my considered view, to secure the ends of justice, the High Court can exercise its inherent power to give such direction when the material placed by the prosecution i.e. charge sheet discloses the commission of offence under Section 370A IPC.

8. In the result, while quashing the proceedings in PRC No. 103 of 2014 on the file of II Additional Junior Civil Judge-cum-XIX Metropolitan Magistrate, Kukatpally at Miyapur, Cyberabad under Section 4 of PIT Act against the petitioner/A3, learned Committal Magistrate is directed to take cognizance under Section 370A IPC against the petitioner/A3."

7. As stated supra, the petitioner herein is accused No.3,

and he is only a customer. As per the remand report, the

offences alleged against him are under Sections - 3, 4 and 5

of the Act, 1956, but not under Sections - 370A (2) and 188 of

IPC. Therefore, in view of the principle laid down in the above

decision, the proceedings against the petitioner herein for the

offence under Sections - 3, 4 and 5 of the Act, 1956 are liable

to be quashed.

8. The present Criminal Petition is accordingly allowed,

and the proceedings in Crime No.802 of 2021 on the file of

KPHB Colony Police Station, Cyberabad, Ranga Reddy Distric,

are hereby quashed against the petitioner - accused No.3