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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
Anil Kumar Upman, J.
Akshay Jain S/o Shri Nirmal Kumar Jain - Petitioner
Versus
State Of Rajasthan, Through PP - Respondent
S.B. Criminal Miscellaneous (Petition) No. 10079/2022
Decided On : 22-04-2024
Quashing - Criminal Proceedings - Immoral Traffic (Prevention) Act, 1956 - Sections 3, 4, 5, 7, 8, 15(2) - The court held that violation of Section 15(2) does not automatically quash proceedings unless prejudice is shown; a customer in a brothel is not liable under the Act.
Fact of the Case:
The accused petitioner sought to quash criminal proceedings for being present as a customer in a brothel, arguing that the search was conducted without the required witnesses as per Section 15(2) of the Immoral Traffic (Prevention) Act.
Finding of the Court:
The court found that the search violated Section 15(2) but ruled that such a violation alone does not warrant quashing the proceedings unless it causes prejudice. It also determined that merely being a customer does not attract liability under the Act.
Issues: Whether the violation of Section 15(2) of the Immoral Traffic (Prevention) Act warrants quashing of proceedings, and whether a customer in a brothel can be prosecuted under Sections 3, 4, 5, 7, 8, or 9 of the Act.
Ratio Decidendi: The court concluded that while the violation of Section 15(2) is significant, it does not invalidate proceedings unless it can be shown to have caused prejudice. Additionally, a customer in a brothel does not fall under the penal provisions of the Act.
Result: The court quashed the proceedings against the accused petitioner.
ORDER :
Anil Kumar Upman, J.
1. The instant misc. petition under Section 482 Cr.P.C. has been filed on behalf of the accused petitioner for quashing of entire proceedings of criminal case No.78/18 including the order taking cognizance dated 02.11.2016, pending before learned Judicial Magistrate, District Jaipur, arising out of FIR No.479/2015 PS Sadar, Jaipur for offences under Sections 3, 4, 5, 6, 7 and 8 of Immoral Traffic (Prevention) Act, 1956.
2. Learned counsel for the petitioner submits that while conducting the search of the house in question, mandatory provision of Section 15(2) of the Act, which requires the presence of two local witnesses, was not followed, and there was violation of Section 15 (2) of the Act. He submits that as per the prosecution case, the applicant was simply a customer, and simply being a customer at any house that is being used for prostitution will not attract any penalty under the Act unless there is the involvement of the customer in the business of prostitution. He further submits that proceedings has been initiated against the petitioner in mechanical manner as the order taking cognizance dated 02.11.2016 clearly shows complete non-application of mind as details has been filled in ready-made typed performa. Counsel relied upon the judgement of High Court of Karnataka, Kalaburagi Bench in the case of Shivaraj vs. State of Karnataka (Criminal Petition No. 200782 of 2016) and in support of his second contention learned counsel for the petitioner has relied upon the judgment of Karnataka High Court in Raghavendra @ Raghu vs. State of Karnataka (Criminal Petition No. 8055 of 2016), Mahesh Hebbar @ Mahesh vs. The Station House Officer, Banaswadi, P.S. Bangalore (Writ Petition No. 56504 of 2015), Babu S. vs. State by Kengeri Police Station Bengaluru (Criminal Petition No. 2119 of 2022), Barath S.P. vs. State of Karnataka (Criminal Petition No. 1757 of 2022) and Suraj vs. State of Karnataka (Criminal Petition No. 7110 of 2011), the judgements of Andhra Pradesh High Court in Salapu Venkateswara Rao vs. State of Andhra Pradesh (Criminal Petition No. 2156 of 2022), Korada Subrahmanyam vs. State of Andhra Pradesh (Criminal Petition No. 6182 of 2022), Goenka Sajan Kumar vs. State of Andhra Pradesh (Criminal Petition No. 4161 of 2014), Nartu Rambabu vs. State of Andhra Pradesh (Criminal Petition No. 4289 of 2022) and Padala Venkata Sai Rama Reddy vs. State of Andhra Pradesh (Criminal Petition No. 6733 of 2021), the judgement of Gujarat High Court in the case of Vinod @ Vijay Bhagubhai Patel vs. State of Gujarat (Criminal Misc. Application No. 8156 of 2017) as well as the judgement of Madhya Pradesh High Court in the case of Naman Laddha vs. State of M.P. (Misc. Criminal Case No. 34970 of 2022). He thus, craves acceptance of the misc. petition.
3. Per contra, learned State Counsel submits that the learned trial court has not committed any illegality or perversity in taking cognizance and initiating criminal proceedings against the petitioner. From the material available on record, it is clear that prima facie, case is made out against the petitioner. He thus, prays that the instant misc. petition may be dismissed.
4. I have heard and considered the submissions advanced at bar and have gone through the material available on record.
5. The issue involved in this petition was considered in detail by the Allahabad High Court in application under Section 482 CrPC No.9161/2023 (Neutral Citation No.- 2024: AHC-LKO:15780. While considering the provisions of the Act, Allahabad High Court has held as under:-
"9. So far as the first question is concerned, it would be appropriate to quote Section 15 of the Act as follows:-
"15. Search without a warrant.—(1) Notwithstanding anything contained in any other law for the time being in force, whenever the special police officer or the trafficking police officer, as the case may be, has reasonable grounds for believing that an offence punishable under this Act has been or is being
AI
A customer in a brothel cannot be prosecuted under the Immoral Traffic (Prevention) Act, and violations of procedural safeguards do not automatically invalidate proceedings unless prejudice is demons....
A customer found in a brothel cannot be prosecuted under the Immoral Traffic (Prevention) Act unless involved in managing or facilitating prostitution.
Violation of Section 15(2) of the Act is irregular but not a ground for quashing the proceeding. A customer found in a brothel cannot be held liable under the Immoral Traffic (Prevention) Act.
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.
A customer at a brothel cannot be prosecuted under the Immoral Traffic (Prevention) Act without evidence of involvement in procuring prostitution.
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....
The main legal point established in the judgment is the importance of complying with mandatory provisions under the Immoral Traffic (Prevention) Act, the distinction between mandatory and directory p....
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