M.Gopichand vs The State Of Telangana And Another
2022 Latest Caselaw 3199 Tel

       THE HON'BLE SRI JUSTICE K. LAKSHMAN

           CRIMINAL PETITION No.5749 OF 2022

ORDER:

This Criminal Petition is filed under Section - 482 of

the Code of Criminal Procedure, 1973 (for short 'the Code')

to quash the proceedings in P.R.C.No.69 of 2019 on the file

of XIV Additional Chief Metropolitan Magistrate, at

Hyderabad.

2. The petitioner herein is arraigned as accused No.3 in

the said PRC. The offences alleged against him are under

Sections 370, 370-A of the Indian Penal Code, 1860 (for

short 'IPC') and Sections - 3, 4, 5 and 7 of the Prevention of

Immoral Traffic Act, 1956 (for short 'PITA').

3. Heard Mr. K.Rajashekar, learned counsel for the

petitioner and the learned Assistant Public Prosecutor

appearing on behalf of respondents - State.

4. In the charge sheet, it is alleged that accused No.1

has been running a brothel business in his Flat No.305,

Tanmayi Apartment, Srinagar Colony, while accused No.2

and the petitioner herein - accused No.3, are the

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customers. It is further alleged that accused No.1 has

been procuring victim sex workers by luring them that he

would pay them huge money and contacting the customers

and collecting Rs.5,000/- to Rs.10,000/- per each

customer for having sex with the victims. To organize the

brothel business, accused No.1 has been using his mobile

Nos.9963042077 and 8317644056. Accused No.1 used to

bring the sex workers from various places of India to the

said Flat and procuring them to the needy customers. On

22.06.2017, accused No.1 collected Rs.5,000/- each from

accused No.2 and the petitioner herein - accused No.3 to

have sex with sex worker in his Flat, where the police

apprehended accused No.2 and the petitioner herein and

rescued the sex worker - victim (LW.4) from the aforesaid

Flat. Thus, the petitioner has committed the aforesaid

offences.

5. Mr. K.Rajashekar, learned counsel for the petitioner,

referring to the contents of the charge sheet, would submit

that the petitioner has not committed any offence much

less the alleged offences under Sections 370, 370-A of

I.P.C., and Sections 3,4,5 and 7 of PIT Act. As per the

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contents of the charge sheet, there is no material to show

that he has participated in sex with the victim. Further,

the contents of the charge sheet lack the ingredients of the

offences alleged against the petitioner herein. With the said

submissions, he sought to quash the proceedings against

the petitioner herein.

6. On the other hand, learned Assistant Public

Prosecutor would submit that there are specific allegations

against the petitioner herein. Further, on the instructions

of accused No.1, the petitioner went to the brothel house

and found waiting in the Hall of said Flat for having sex

with the victim. Therefore, he is a customer. He would

further submit that though the contents of the charge

sheet lack the ingredients of Section - 370 of IPC and

Sections - 3, 4, 5 and 7 of the PITA, the same would

constitute an offence under Section - 370A (2) of IPC.

Whether the petitioner is innocent of the offences alleged is

the triable issue, which is to be tried and decided only after

full-fledged trial, but cannot be considered in a petition

under Section - 482 of the Cr.P.C.. The Investigating

Officer after recording the statements of the witnesses and

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after collecting the material only filed the charge sheet and,

therefore, he sought to dismiss the present petition. He

has also placed reliance on the principle laid down by the

High Court for the States of Telangana and Andhra

Pradesh in Naveen Kumar v. The State of Telangana1.

7. In view of the said rival submissions, the undisputed

facts are that the petitioner herein is accused No.3 in the

aforesaid PRC. It is also not in dispute that on 22.06.2017

when a raid was conducted at Flat No.305, Tanmayi

Apartment, Srinagar Colony, the petitioner herein was

found in the hall of said Flat. In view of the same and even

as per the contents of the charge sheet, the petitioner is

only a customer.

8. In view of the rival submissions, it is apt to refer to

the provisions of Section - 370 (A) of IPC and Sections - 3,

4, 5 and 7 of the PITA, which are as under:

"370-A. Exploitation of a trafficked persons._ (1) xxxxx

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

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(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."

PIT ACT

"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,

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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.

(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 maybe, has knowledge that the premises or

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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 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.

4. Punishment for living on the earnings of prostitution.-

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(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.

(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 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

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person within the meanings of Sub-section (1).

5. Procuring, including 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. includes 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;

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

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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 of whom an offence committed under this sub-section,-

i. 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 ii. 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.

XXXXX (3) An offence under this section shall be triable -

a. in the place from which a person is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such person is made; or

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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.

7. Prostitution in or in the vicinity of public places.--

[(1) Any [person], who carries on prostitution and the person with whom such prostitution is carried on, in any premises,--

(a) which are within the area or areas, notified under sub-section (3), or

(b) which are within a distance of two hundred metres of any place of public religious worship, educational institution, hostel, hospital, nursing home or such other public place of any kind as may be notified in this behalf by the Commissioner of Police or Magistrate in the manner prescribed, shall be punishable with imprisonment for a term which may extend to three months.] [(1A) Where an offence committed under sub-section (1) is in respect of a child or minor, the person committing the offence shall be punishable with imprisonment of either

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description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.] (2) Any person who--

(a) being the keeper of any public place knowingly permits prostitutes for purposes of their trade to resort to or remain in such place; or

(b) being the tenant, lessee, occupier or person in charge of any premises referred to in subsection (1) knowingly permits the same or any part thereof to be used for prostitution; or (c) being the owner, lessor or landlord, of any premises referred to in sub-section (1), 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 may be used for prostitution, or is wilfully a party to such use, shall be punishable on first conviction with

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imprisonment for a term which may extend to three months, or with fine which may extend to two hundred rupees, or with both, and in the event of a second or subsequent conviction with imprisonment for a term which may extend to six months and also with fine [which may extend to two hundred rupees, and if the public place or premises happen to be a hotel, the licence for carrying on the business of such hotel under any law for the time being in force shall also be liable to be suspended for a period of not less than three months but which may extend to one year:

Provided that if an offence committed under this sub-section is in respect of a child or minor in a hotel, such licence shall also be liable to be cancelled.

Explanation.--For the purposes of this sub-section, "hotel" shall have the meaning an in clause (6) of section 2 of the Hotel-Receipts Tax Act, 1980 (54 of 1980).] [(3) The State Government may, having regard to the kinds of persons frequenting any area or areas in the State, the nature and the

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density of population therein and other relevant considerations, by notification in the Official Gazette, direct that prostitution shall not be carried on in such area or areas as may be specified in the notification.

(4) Where a notification is issued under sub-section (3) in respect of any area or areas, the State Government shall define the limits of such area or areas in the notification with reasonable certainty.

(5) No such notification shall be issued so as to have effect from a date earlier than the expiry of a period of ninety days after the date on which it is issued.]"

9. As discussed above, the petitioner herein is a

customer. Therefore, the contents of the charge sheet lack

the ingredients of Sections - 3, 4, 5 and 7 of the PITA.

A customer to flesh trade cannot be treated as an offender

under Sections - 3, 4, 5 and 7 of PITA. There is no

allegation against the petitioner herein that he has

recruited, transported, harboured, transferred or received a

person for the purpose of exploitation. In Mohammad

Riyaz v. The State Of Telangana2, the High Court for the

. Criminal Petition No.5803 of 2018, decided on 27.06.2018

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States of Telangana and the Andhra Pradesh referring to

the principle laid down in S. Naveen Kumar1 relied upon

by the learned counsel for the petitioner and Vinod @

Vijay Bhagubhai Patel v. State of Gujarat [2017 (4)

GLR 2804] quashed the proceedings against the customer

for the offences punishable under Section - 370 of the IPC

and Sections - 3 to 5 of the PITA, however, permitted the

Magistrate concerned to proceed further with the offence

under Section - 370A (2) of the IPC. Therefore, this Court

is of the considered opinion that the contents of the charge

sheet lack the ingredients of Section - 370 of I.P.C., and

Sections - 3, 4, 5 and 7 of the PITA. However, since there

are allegations against the petitioner herein, the Court

below may go on trial for the offence under Section -

370-A of the I.P.C. against him.

10. In view of the above discussion, the proceedings in

P.R.C.No.69 of 2019 on the file of XIV Additional Chief

Metropolitan Magistrate, Hyderabad, are hereby quashed

against the petitioner herein - accused No.3 only for the

offences under Section - 370 of I.P.C., and Sections - 3, 4,

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5 and 7 of the PITA. As far as the offence under Section

370-A I.P.C., is concerned, this petition is dismissed.

11. The present Criminal Petition is accordingly allowed

in part, to the above extent.

As a sequel thereto, Miscellaneous Petitions, if any,

pending in the Criminal Petition stand closed.

____________________ K. LAKSHMAN, J

1st July, 2022 svl