Point of Law : Continuation of criminal proceedings against petitioner therein, who was present in a brothel house at time of raid by Police as a customer, or fastening with any criminal liability in respect of any of offences for which charge sheet was filed, would amount to abuse of process of law.

ORDER :

The present Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1972 seeking to quash the proceedings against the petitioner in C.C.No.89 of 2019 on the file of the Court of V Additional Junior Civil Judge-cum-Metropolitan Magistrate, Visakhapatnam.

2. Heard the learned counsel for the petitioner and learned Additional Public Prosecutor representing the respondent.

3. The petitioner is Accused No.2 in Crime No.89 of 2019 on the file of Arilova Police Station. After completion of investigation, a charge sheet was filed against him along with other accused for the offences punishable under Sections 3(1), 3(2), 4 and 5 of Immoral Traffic (Prevention) Act, 1956 (ITP Act) alleging that when the Police raided a brothel house, the petitioner was present there as a customer and he visited the said premises to have sexual intercourse with a prostitute on payment of cash.

4. The learned counsel for the petitioner inter alia submits that prosecution for the offences under Sections 3(1), 3(2), 4 and 5 of ITP Act is not maintainable against a person, who visits the brothel house only as a customer. He further submits that the legal position as to whether a customer who visits a brothel house is liable for prosecution or not is no more res integra and the matter is covered by recent decisions of this Court in Padala Venkata Sai Rama Reddy vs. The State of Andhra Pradesh, Criminal Petition No.6733 of 2021 dated 29.11.2021, and Salapu Venkateswara Rao vs. The State of Andhra Pradesh, Criminal Petition No.2156 of 2022, dated 13.3.2022. While drawing attention of this Court to the said decisions, learned counsel would urge that charge sheet filed against the petitioner in the present case is liable to be quashed.

5. The learned Additional Public Prosecutor inter alia opposing the Criminal Petition, however, fairly submits that as per the charge sheet the petitioner is only a customer and the legal position in the decisions relied on by the learned counsel for the petitioner is not disputed.

6. The learned Judge in Padala Venkata Sai Rama Reddy while referring to the earlier decisions of this Court in Z. Lourdiah Naidu v. State of A.P., 2013 (2) ALD (Cri) 393 = 2014 (1) ALT (Cri) 322 (A.P.), Goenka Sajan Kumar v. The State of A.P., 2014 (2) ALD (Cri) 264 = 2015 (1) ALT (Cri) 85 (A.P.) as also the decision of Hon’ble High Court of Karnataka at Bengaluru in Sri Roopendra Singh v. State of Karnataka, (Criminal Petition No.312 of 2020, dated 20.1.2021) held that continuation of criminal proceedings against the petitioner therein, who was present in a brothel house at the time of raid by the Police as a customer, or fastening with any criminal liability in respect of any of the offences for which the charge sheet was filed, would amount to abuse of process of law. The relevant paras in the said decisions may be extracted for ready reference :

(i) Paragraph Nos.6 and 7 in Z. Lourdiah Naidu :

“6. Section 4 of the Act would be attracted only if a person knowingly lives on the earnings of the prostitution of any other person. The activity carried out in a given premises will amount to prostitution within the meaning of Section 2 of the Act only if sexual abuse by exploitation of the person is done for commercial purpose.

7. Section 4 of the Act does not punish or make the person liable for the acts done by the person who is running the brothel house. This Section does not make the person, who carries on prostitution for her own gain, liable for punishment, so also the person who is running the said premises. This Section is meant to punish those persons who are living on the earnings of the prostitute. The said provision cannot be invoked for prosecuting the persons who visit the said premises. Therefore, the ingredients of Sections 3 and 4 of the Act are not made out. In that view of the matter, continuation of proceedings against the petitioners in C.C.No.337 of 2008 on the file of the learned Special Judicial Magistrate of F