IMPORTANT POINT
Prostitution – Criminal proceedings cannot be allowed to continue where allegations in written complaint do not make out any ingredients required to constitute offences.

JUDGMENT

Shampa Dutt Paul, J.—The present revisional application has been preferred praying for quashing of the proceeding being ACGR case no.5759 of 2020 pending before the learned Additional Chief Judicial Magistrate, Alipore, South 24 Parganas arising out of Purba Jadavpur PS case no.95 of 2020 dated 18.12.2020 under Section 120B of the Indian Penal Code, 1860 read with Sections 3, 4, 5, 6, 7 and 18 of the Immoral Traffic (Prevention) Act, 1956.

2. The case of the petitioner is that the petitioner was arrested from a Spa which allegedly was used as a brothel where the petitioner unknowingly had gone for a massage as he had a backache. It is the allegation that the petitioner was a customer in the said Spa.

3. The women/girls found at the place of occurrence are all major as seen from the case diary and none have stated in their statements recorded under Section 164 Cr.P.C. about being forced into working at the ‘Spa’.

4. The petitioner prima facie appears to be a customer at the ‘Spa’ as seen from the case diary.

5. The Immoral Traffics (Prevention) Act, 1956 (here in after referred to the Act of 1956 defines:-

2(a) “brothel” includes any house, room [conveyance], or place or any portion of any house, room [conveyance], or place, which is used for purposes [of sexual exploitation of abuse] for the gain of another person or for the mutual gain of two or more prostitutes.

(f) Prostitution – Prior to 1986 amendment “prostitution” was defined to mean “the act of a female offering her body for promiscuous sexual intercourse for hire, whether in money or in kind, and whether offered immediately or otherwise, and the expression “prostitution” shall be construed accordingly under the new definition “prostitution” means the sexual exploitation or abuse of persons for commercial purposes. Thus, the present definition is not confined to the act of a female offering her body for promiscuous sexual intercourse with her, bur includes sexual exploitation or abuse of a male for commercial purposes. According to Black s Law Dictionary “prostitution is performing an act of sexual intercourse for hire, or offering or agreeing to perform an act of sexual intercourse or any unlawful sexual act for hire. The act of practice of a female of prostituting or offering her body to an indiscriminate intercourse with men for money or its equivalent”

Section 3 of the Act of 1956 lays down:-

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 assist 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 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 used as a brothel, or is willfully 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.

6. There being no statement/allegations in the written complaint showing that the ingredients in respect of the said Sections are present in respect of this petitioner, Section 3 of the Act o