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ANDHRA PRADESH HIGH COURT
K. Sreenivasa Reddy, J.
Vasanthavada Raghubabu and Ors. – Petitioners
versus
State of Andhra Pradesh – Respondent
Criminal Petition Nos.8675 of 2022, 1190 of 2023, 1806 of 2023 and 1959 of 2023
Decided on 19.4.2023
Indian Penal Code, 1860 – Sections 370 and 370A – Immoral Traffic (Prevention) Act, 1956 – Sections 4, 5 and 7 – Criminal Procedure Code, 1973 – Section 482 – Criminal prosecution of customers of sex workers – Police are registering cases as against a customer for offences punishable under Sections 3, 4 and 5 of Act, 1956 along with Section 370 IPC – Consent of victim is not material in determination of offence of traffic – Expression “exploitation” includes any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or forced removal of organs – In cases where a sex worker engages in prostitution out of her free will without there being any inducement, force or coercion, it would still be a question of fact whether woman is carrying on the profession out of her free will or not – In generic, going by traditions of country, no woman would get into the profession by choice unless and until she being forced to get into the profession – Whether it is out of free will or not, would remain a question of fact and same has to be decided in course of trial – In view of conflicting orders passed by Single Judges of this Court, to put a quietus to the issue, it is desirable to refer the matter to a Division Bench for an authoritative pronouncement and to attain finality as whether a customer can be brought into purview of Sections 370 and 370A IPC – Matter referred to Division Bench. (Paras 8, 9, 11, 12, 16 and 17)
Result: Matter referred to Division Bench.
ORDER (COMMON)
Since common issue arises in all the Criminal Petitions, they are being taken up for disposal together by way of this common order.
2. (a) Criminal Petition No.8675 of 2022 is filed seeking to quash the proceedings in P.R.C. No.16 of 2022 on the file of the VI Metropolitan Magistrate, Vijayawada, by the petitioners/A.3 to A.6 respectively, for the offence punishable under Section 370A (2) of the Indian Penal Code, 1860 (IPC).
(b) Criminal Petition No.1190 of 2023 is filed seeking to quash the proceedings in crime No.855 of 2022 of Krishnalanka police station, Vijayawada, by the petitioners/A.2 and A.3, registered for the offences punishable under Sections 370 A (2) IPC and 3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 (for short, “the Act, 1956”). 2
(c) Criminal Petition No. 1806 of 2023 is filed seeking to quash the proceedings in S.C.No.181 of 2022 on the file of the V Additional Sessions Judge-cum-Special Court for trial of offences against Women, Eluru, registered for the offences punishable under Sections 370 IPC and 3 and 4 of the Act, 1956, by the petitioner/A.2.
(d) Criminal Petition No.1959 of 2023 is filed seeking to quash the proceedings in crime No.476 of 2021 of Arundalpet police station, Guntur district, by the petitioner/A.7, registered for the offences punishable under Sections 188, 269, 370, 370 A (2) IPC and 3 (1), 4 (1), 5(1) (a) of the Act, 1956.
3. In the aforesaid cases, customers are being prosecuted for the aforesaid offences. The present Criminal Petitions are filed by the respective petitioners, who are arrayed as accused in the respective crimes, as stated supra, to quash the aforesaid proceedings as against them on the ground that a customer would not come within the purview of the offences under Sections 3, 4 and 5 of the Act, 1956 and 370 and 370A IPC and hence, cannot be prosecuted for the aforesaid offences.
4. On the other hand, the learned Special Assistant Public Prosecutor Sri Soora Venkata Sainath strenuously contended that prima facie a case for the offence under Section 370A IPC would be made out as against a customer, as in all the cases, more or less, the customer(s) were caught red-handed by the officials at the time of their raid, and whether the case is one of attempt, or to commit an offence or preparation, would be the subject matter of investigation or trial, as the case may be, and at this stage, this Court, in a petition under Section 482 CrPC, would not be in a position to conduct a roving enquiry to go into these details.
5. Originally, in cases of this nature, police were registering cases under Sections 3, 4 and 5 of the Act, 1956. Contention of the learned counsel for the petitioners is that the offences under Sections 3 and 5 of the Act, 1956 would not be made out as against the customers, for the reason that the Act, 1956 is silent as to the offences committed by the customers, who visit the house of victim.
6. Section 3 of the Act, 1956 reads thus:—
“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, 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 us
In cases where a sex worker engages in prostitution out of her free will without there being any inducement, force or coercion, it would still be a question of fact whether woman is carrying on the p....
Immoral Traffic (Prevention) Act, 1956 do not prohibit sale of sexual services per se – There is no specific provision under Act, 1956, that is directed towards customers.
Customers cannot be prosecuted under the Immoral Traffic (Prevention) Act without evidence of trafficking, but may be liable under Section 370(A)(2) IPC if they had reason to believe victims were tra....
The absence of evidence proving that victims were trafficked or exploited negates the applicability of Section 370(A)(2) IPC against customers.
Customers cannot be prosecuted under trafficking laws without evidence of knowledge regarding the exploitation of individuals involved.
Sexual exploitation – In absence of any evidence likely to come on record, securing conviction against accused is impossible and case can be quashed.
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