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2022 Supreme(Mad) 2155
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. SATHISH KUMAR, J.
Balaji - Appellant
Versus
State rep. By The Special Sub-Inspector of Police, CCB Chennai & Another - Respondent
Crl. O.P. No. 6563 of 2022 & Crl.M.P.No. 3709 of 2022
Decided On : 29-06-2022
For the Petitioner:M. Mohammed Riyaz, Advocate. For the Respondents: R1, A. Gokulakrishnan, Additional Public Prosecutor.
Engaging in sex work with consent is not punishable, and only running a brothel is unlawful.
Headnote:
Immoral Traffic (Prevention) Act - Quashing of FIR
Fact of the Case:
The petitioner was apprehended at a massage center during a police raid and was accused of offenses under the Immoral Traffic (Prevention) Act and the Indian Penal Code. The petitioner argued that the allegations did not amount to any offense as engaging in sex work is not illegal, and there was no evidence of coercion or force.
Finding of the Court:
The court analyzed the allegations and found that there was no evidence to show that the petitioner was involved in any illegal activity or that the sex workers were coerced. The court referred to a decision of the Hon-ble Apex Court emphasizing that only running a brothel is unlawful, and sex workers should not be penalized or harassed during raids.
Issues: The issues revolved around the legality of the petitioner's presence at the massage center, the nature of the alleged offenses, and the absence of evidence of coercion or force on the sex workers.
Ratio Decidendi: The court relied on the legal principle that engaging in sex work with consent is not punishable, and only running a brothel is unlawful. The absence of evidence of coercion or force on the sex workers led to the quashing of the FIR against the petitioner.
Final Decision: The Criminal Original Petition was allowed, and the FIR pending against the petitioner was quashed.
JUDGMENT
(Prayer: Criminal Original Petition filed under Section 482 Cr.P.C., to call for the records and quash the FIR in Crime No.13 of 2021 pending on the file of the first respondent.)
This Criminal Original Petition has been filed to quash the FIR in Crime No.13 of 2021 pending on the file of the first respondent, for the offences punishable under Sections 3 (2) (a), 4 (1), 5 (1) (a), 5 (1) (d) of Immoral Traffic (Prevention) Act and Section 370 A (2) of the Indian Penal Code.
2. Heard Mr.M.Mohammed Riyaz, learned counsel for the petitioner and Mr.A.Gokulakrishnan, learned Additional Public Prosecutor for the respondents.
3. The case of the prosecution is that on 1/10/2021, a person by name Rajesh, who had approached the defacto complainant, who is the SSI of the first respondent Police, and informed that his owner Kulotungan is running a Massage Centre and on payment of Rs.2,500/- he can have an affair with the girls.
4. Accordingly, the defacto complainant visited the said massage centre and lodged a complaint with the first respondent Police and accordingly, the First Information Report was registered in Crime No.13 of 2021 for the offences punishable under Sections 3 (1) (a), 4 (1) and 5 (1) (a) of Immoral Traffic (Prevention) Act was registered.
5. The allegation against the petitioner is that when the police party raided a massage centre, the petitioner was also present along with the sex workers and he was apprehended and arrayed as A.4.
6. 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.
7. 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.
8. 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-4. 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.
9. 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.
10. 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 fut
