The central legal point established in the judgment is that the offence of sexual exploitation under Sec. 370A of the IPC involves engaging in sexual exploitation of a person who has been trafficked, and the knowledge of the accused regarding the trafficking of the person can be considered at the trial stage.

JUDGMENT

1. These revision applications are at the instance of accused nos. 4, 6 and 7 challenging the order dtd. 6/12/2021 below application Exh.D-6 in Sessions Case (Ors.) No. 53 of 2018.

2. By the impugned order the learned Sessions Judge has refused to discharge the applicants from the offence punishable under Sec. 370A of IPC.

3. According to the prosecution, the applicants along with the original accused no.5 were found taking massage in Sevanta Salon and Spa from girls who were allegedly trafficked. During the course of the raid, it was found that the applicants were lying naked and were receiving massage from the girls. It is in these circumstances that the FIR came to be registered against the applicants and others and after investigation a chargesheet has been filed.

4. The learned Session Judge while discharging the original accused no.5 has refused to discharge the present applicants. The applicant no.5 has been discharged presumably on the ground that he was not found lying naked.

5. Be that as it may, I have heard learned Counsel for the parties.

6. It is submitted by the learned Counsel for the applicants that 'sexual exploitation', within the meaning of sub-sec. 2 of Sec. 370A of the IPC would require that the accused knows that person (who is sexually exploited) is a person who have been trafficked. It is submitted that at this stage there is no material on record to show that the applicant had knowledge or had reason to believe that girls were trafficked. He submitted that Delhi High Court has held that cross sex massages are permissible.

7. Learned Addl. Public Prosecutor submitted that matter is at a preliminary stage of framing of charge only and the contentions as raised cannot be considered at this stage. particularly when the Sessions Judge has considered the circumstances, in the context of sub- sec. 2 of Sec. 370A of the IPC.

8. I have considered the submissions made.

9. Sub-sec. 2 of sec. 370A which is relevant. for the propose reads thus:- 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. It can thus be seen that the offence essentially involves 'sexual exploitation' of a person who has been trafficked. The learned Sessions Judge in paragraph 6 of the impugned order has held thus:- As far as accused no.5 is concerned there is no evidence which will suggest that he was taking massage from any of the victims in a nude condition. It may be stated that taking a massage by itself is not an offence. Likewise, it is to be emphasized that massaging male persons by a lady when the man is nude would amount to sexual exploitation. Hence, the charge is framed against accused nos.4,6 and 7 for offence punishable under subsec. 2 of Sec. 370 A of the Indian Penal Code.

10. It can thus be seen that the learned Sessions Judge has distinguished the case of the accused no.5. The learned Sessions Judge has found that there is reason to believe that the applicants had engaged in sexual exploitation of the girls.

11. As rightly submitted on behalf of the State the matter is at a preliminary stage of framing of charge and contentions about the knowledge of the applicants that the person (who is sexually exploited) is trafficked can be gone into at the trial. No case for interference is made out.

12. Accordingly, Criminal Revisions Applications are dismissed in limine.