IMPORTANT POINT
A person cannot be prosecuted under the Immoral Traffic (Prevention) Act unless specific overt acts are attributed to them that fall within the definitions and punishments outlined in the Act.

ORDER :

Sathi Kumar Sukumara Kurup, J.

[PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C, praying, to call for the records pertaining to the impugned First Respondent Report in Cr.No.34 of 2023 for the offences under Sections 3(1), 3(2)(a), 4(1), 5(1)(a) and 6(1)(a) of Immoral Traffic (Prevention) Act, 1956, dated 06.05.2023 and to quash the same as illegal.]

The learned Counsel for the Petitioner submitted that the Petitioner is arrayed as A4 in Cr.No.34 of 2023 on the file of the first Respondent Police. The learned Counsel for the Petitioner further submitted that there is no specific overt act had been attributed on the Petitioner. Therefore, the registration of the case for the offences punishable under Sections 3(1), 3(2) (a), 4(1), 5(1)(a) and 6(1)(a) of Immoral Traffic (Prevention) Act, 1956, is without any basis and therefore, he seeks to quash the same.

2. The learned Counsel for the Petitioner also relied on the order of this Court R. Shine vs. The Inspector of Police, Nithiravilai Police Station and another in Crl.O.P.(MD) No.14232 of 2022, dated 25.11.2022.

3. The learned Counsel for the Petitioner further relied upon the Ruling of Andhra Pradesh High Court in Crl.Petition No.4161 of 2014, in Goenka Sajan Kumar vs. The State of Andhra Pradesh, wherein, it has been held as follows :

"4. Section 3 of the Act imposes punishment for maintaining a brothel house or allowing premises to be used as a brothel house. Section 4 imposes penalty for living on the earnings of prostitution. Section 5 deals with the procurement, inducement or indicing for a person for the sake of prostitution. Section 6 of the Act speaks about detaining a person in the premises where prostitution is carried out.

5. None of these sections speak about punishment to the customer of a brothel house. Admittedly, the petitioner does not fall under the provisions of Sections 3 to 7 of the Act, as the petitioner was not running a brothel house nor did he allow his premises to be used as a brothel house. The petitioner is not alleged to be living on the earnings of prostitution. It is also not the case of the prosecution that the petitioner was procuring, inducing or in dicing any person for the sake of prostitution nor is it the case of the prosecution that any person was earning on the premises where prostitution is carried out.

6. I, therefore, agree with the contention of the learned counsel for the petitioner that the petitioner is not liable for punishment under the provisions of Sections 3, 4 and 5 of the Act. Consequently, the prosecution of the petitioner is unjust and the case against him is liable to be quashed."

4. The learned Counsel for the Petitioner relied upon the Ruling of Karnataka High Court in Writ Petition No.56504 of 2015, in Mahesh Hebbar @ Mahesh vs. The Station House Officer, Bangalore, wherein, it has been held as follows :

"2. On a reading and understanding of the Act of Section 3 of the Act is about punishment for keeping a brothel or allowing premises to be used as a brothel, Section 4 of the Act pertains to punishment for living on the earnings of prostitution, Section 5 of the Act is about procuring, inducing or taking (person) for the sake of prostitution, Section 7 is in respect of Prostitution in or in the vicinity of public places.

3. The petitioner, who is alleged to have been found in the brothel, does not fall within definition of prostitution as contemplated under Section 2(f) of the Act, and no offence under the above Act can be made out against him. His prosecution is illegal and allowing the criminal proceedings to continue against him is pure abuse of process of law.

Petition is allowed. The proceedings in CC No.851/2013, on the file of the Immoral Traffic Court, Bangalore, in so far as the petitioner is concerned, is quashed."

5. The learned Counsel for the Petitioner relied upon the Ruling of this Court in the case of Vinitha and others vs. The Inspector of Police, Courtalam Police Station and another,