Back
ORISSA HIGH COURT
Sibo Sankar Mishra, J.
Bikash Kumar Jain and Anr. – Petitioners
versus
State of Odisha – Opp. Party
CRLMC No.3390 of 2023
Decided on 9.2.2024
Immoral Traffic (Prevention) Act, 1956 – Sections 3, 4, 5, 6 and 7 – Indian Penal Code, 1860 – Sections 370(3) and 370A(2) – Sexual exploitation – Arrest made from a camouflaged brothel – All alleged victim girls those who are apprehended from spot are foreigners – All of them were adults – They were deported from country – Allegation that girls were trafficked and thereafter sexually exploited is a matter found mentioning in narration of charge-sheet but there is no evidence collected and placed before Court – In absence of such evidence likely to come on record, securing conviction against petitioners is impossible – Taking allegations at its face value no case is made out against petitioners insofar as allegations of 370(3) or 370A (2) of IPC – This is a fit case where this Court in exercising inherent jurisdiction under Section 482 Cr.P.C. quash cognizance order insofar as offences under Sections 370(3) and 370-A(2) of IPC against petitioners are concerned – However, petitioners have to face trial insofar as other offences as alleged in charge-sheet and cognizance is taken by court below are concerned. (Paras 10, 11, 13, 14 and 15)
Result: Crl. M.C. partly allowed.
JUDGMENT
S.S. Mishra, J.—An FIR No. 212 dated 19.05.2018 in UPD, Bhubaneswar Capital Police Station was registered against many accused persons under Sections 3, 4, 5, 6 and 7 of Immoral Traffic (Prevention) Act, 1956. The present petitioners were also named in the FIR. The allegations against the petitioners in the FIR in precise were that being the customers, they were availing services from a Spa Centre. Under the guise of running a Spa Centre, a brothel is being run from the same place. One Surendra Kumar Mohapatra under the managership of Sanjay Kumar Rana was running the Spa in the name and style of “H2O Spa And Hamam”. It is alleged that they procure the girls and using them for prostitution. On 19.05.2018 a raid was conducted by the Police, eight young girls were found inside the Spa, out of them seven girls were found to have been doing sexual activities with seven persons. They were found in a compromising position. It is alleged that the present petitioners were also engaged in sexual activities with two girls. All the girls were confronted. They stated that Rs. 2,000 each has been charged for giving sexual favour to the clients by the Manager of the Spa. The girls disclosed their identities. On verification of the passports and visa, it was ascertained that all these girls were from Thailand. The FIR indicates that the girls were of the age range from 27 to 35. The passports of the girls were confiscated, and they were subjected to investigation and were let off.
2. After the investigation, the Police have filed the charge sheet on 17.06.2021. In the charge sheet apart from the offences under Sections 3, 4, 5, 6 and 7 of Immoral Traffic (Prevention) Act, 1956, two more higher offences are added i.e. the offences under Sections 370(3) and 370A(2) IPC. Relevant would be reproduced the provisions:—
“Section-370. Trafficking of person—
(1) xxxxxx
(2) xxxxxx
(3) Where offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
(4) xxxxxx
(5) xxxxxx
(6) xxxxxx
(7) xxxxxx
Section-370(A). Exploitation of a trafficked person.—
(1) xxxxxx
(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.”
3. Perusal of Section 370A (2) of the Act indicates that whoever knowingly by or having reason to believe that a person having trafficked, engaged such person for sexual exploitation in any manner shall be punished with the imprisonment for a term which shall not be less than three years but which may extend to five years and shall also be liable for fine. However, the issue as to whether the customer has the knowledge that the person/women is trafficked or engaged for sexual exploitation needs to be adduced from the material on record. In the light of the aforementioned provisions the allegation against the petitioners in the charge sheet is analyzed in the succeeding paragraphs.
4. The petitioners are primarily aggrieved by the addition of aggravated/higher offences under Sections 370(3) and 370A (2) of IPC.
5. Mr. Amit Bose learned counsel for the petitioners submits that the addition of aforementioned two offences and taking cognizance for the said offences by the trial Court is misplaced under law. The petitioners are neither the owner of the Spa nor the Managers, rather they were the customers. They had no clue regarding the identity of the victim girls. Equally they are not aware and there was no occasion for them to inquire or know the age of the girls providing services in the Spa. From the allegations made in the FIR and the charge sheet, even if the allegations are taken at its f
Sexual exploitation – In absence of any evidence likely to come on record, securing conviction against accused is impossible and case can be quashed.
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 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....
At charge framing stage, prima facie material from decoy raid, marked currency recoveries, and scene details suffices to proceed under trafficking provisions despite victim denials of coercion.
The act of visiting a sex worker as a customer does not constitute an offence under the Immoral Traffic (Prevention) Act, according to established legal precedents.
The main legal point established in the judgment is that the allegations in the FIR must disclose an offence, and the court can exercise its inherent power under Section 482 Cr.P.C. to set aside and ....
A customer may still be liable for prosecution under trafficking laws if found in situational exploitation, regardless of previous rulings on knowledge or consent.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
