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2022 Supreme(Mad) 1882
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. SATHISH KUMAR, J.
Udhaya Kumar - Appellant
Versus
The State rep. By The Inspector of Police Anti-Vice Squad, Chennai CCB & Another - Respondent
Crl. O.P. No. 10334 of 2022
Decided On : 08-06-2022
For the Petitioner:D. Prasanna Kumar, Advocate. For the Respondents: A. Gokulakrishnan, Additional Public Prosecutor.
The legal principle protecting sex workers from prosecution in cases involving brothel raids, emphasizing the importance of consent and the absence of coercion.
Headnote:
Immoral Traffic (Prevention) Act - Quashing of FIR - Presence of petitioner at alleged brothel - Consent of sex workers - Legal principle protecting sex workers from prosecution
Fact of the Case:
The petitioner filed a petition to quash the FIR registered against him for alleged offences under the Immoral Traffic (Prevention) Act and the Indian Penal Code. The petitioner was apprehended at a massage center along with sex workers during a police raid.
Finding of the Court:
The court found that the petitioner's presence at the alleged brothel did not constitute an offence, as there was no evidence of his involvement in any illegal activities. The court also emphasized the consent of the sex workers and cited a Supreme Court decision protecting sex workers from prosecution in such cases.
Issues: The issues revolved around the legality of the petitioner's presence at the massage center, the consent of the sex workers, and the applicability of the legal provisions under the Immoral Traffic (Prevention) Act and the Indian Penal Code.
Ratio Decidendi: The court relied on the legal principle established by the Supreme Court, which protects sex workers from prosecution in cases involving brothel raids, emphasizing the importance of consent and the absence of coercion in such situations.
Final Decision: The Criminal Original Petition was allowed, and the FIR against the petitioner was quashed, leading to the closure of the connected criminal miscellaneous petition.
JUDGMENT
(Prayer: Criminal Original Petition filed under Section 482 of Cr.P.C., to call for the records and quash the FIR registered in AVS – II P.S. Crime No.9 of 2021 against the petitioner pending on the file of the respondent Police.)
This Criminal Original Petition has been filed to quash the FIR registered in Crime No.9 of 2021, pending on the file of the Anti Vice Squad - II Police Station, Chennai, for the offences punishable under Sections 3 (2) a, 4 (1), 5 (1) a & 5 (1) d of The Immoral Traffic (Prevention) Act, 1956 and 370 A (2) of the Indian Penal Code, 1860.
2. Heard Mr.D.Prasanna Kumar, learned counsel for the petitioner and Mr.A.Gokulakrishnan, learned Additional Public Prosecutor for the respondents.
3. The allegation against the petitioner is that when the police party headed by the Inspector of Police raided a massage centre, the petitioner was also present along with the sex workers and he was apprehended and arrayed as A.5.
4. Learned counsel appearing for the petitioner submitted that even if the entire allegations are taken together, it would not attract any offence. He further submitted that doing sex work is not illegal and only running a brothel is illegal.
5. Learned counsel appearing for the petitioner further submitted that the sex workers are engaged in prostitution on their own volition and not due to any inducement, force or coercion and, therefore, such acts are not liable for prosecution under Section 370 of the Indian Penal Code.
6. Learned Additional Public Prosecutor submitted that under the pretext of massage centre, a brothel was run by A.1.
7. The present petition is filed by A.5 and not by A.1. The very report and alteration report filed by the Police would indicate that the petitioner was present while sex workers were in the said massage centre. However, even a bare perusal of the FIR does not reveal the presence of the petitioner at the said place. Further, the petitioner is also not shown as an accused in the FIR. However, only in the alteration report, the petitioner is shown as A-5. Even if the entire report is taken at its face value, the said report does not show any offence committed by the petitioner, except for the alleged presence of the petitioner at the said place. Further, there is no material to show that the petitioner was involved in any sexual act at the said place and that the persons, who have been rescued from the said place have made any allegation against any of the individuals, much less the petitioner.
8. In this backdrop, the decision of the Hon'ble Apex Court in BUDHADEV KARMASKAR Vs. THE STATE OF WEST BENGAL & ORS (2022 Live Law (SC) 525), assumes significance, wherein, the Hon'ble Apex Court has held that whenever any brothel is raided, sex workers should not be arrested or penalised or harassed or victimised and it is only the running of the brothel, which is unlawful.
9. In the case on hand, merely because the petitioner was in the place, which is alleged by the respondents to be a brothel being run by some person, the petitioner cannot be fastened with any penal consequence and further, the act of the petitioner also cannot be said to be an act of pressurising the sex workers to commit acts, which they were not interested. From the aforesaid decision, any sex worker, being an adult and indulging in sexual act with his/her own consent, the police authorities should refrain from taking action against such individuals. From the facts, as is evident from the FIR and the alteration report, there is no whisper about any coercion on the sex workers to commit the act, more so from the petitioner. That being the case, the petitioner not being alleged to be a person coercing the sex worker to commit the sexual act, continuing the First Information Report against this petitioner is nothing but a futile exercise and would serve no purpose.
10. For the reasons aforesaid, this Criminal Original Petition is allowed and Crime No.9 of 2021, pending on the file of the Inspector of
