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IN THE HIGH COURT OF ALLAHABAD
ARUN KUMAR SINGH DESHWAL, J.
Dinesh Tiwari @ Dhirendra Kumar Tiwari – Appellant
Versus
State of U.P. and Another – Respondents
Application U/s 482 No. 9161 of 2023
Decided On : 22-02-2024
Immoral Traffic (Prevention) Act - Violation of Section 15(2) - Summary of Acts and Sections: Section 15(2) of the Immoral Traffic (Prevention) Act, 1956 - The court discussed the violation of Section 15(2) of the Act, its effect on the proceeding, and the interpretation of similar provisions in the Code of Criminal Procedure. The court held that the violation of Section 15(2) is irregular but not a ground for quashing the proceeding. It also emphasized the need for careful scrutiny of evidence in such cases.
Fact of the Case:
The police conducted a search of a house suspected of prostitution and found the applicant in an intimate position with a woman. The applicant sought quashing of the proceeding, citing violation of Section 15(2) of the Act and his role as a customer.
Finding of the Court:
The court held that the violation of Section 15(2) is irregular but not a ground for quashing the proceeding. It also ruled that a customer found in a brothel cannot be held liable under the Immoral Traffic (Prevention) Act.
Issues: Violation of Section 15(2) of the Act, and liability of a customer found in a brothel under the Immoral Traffic (Prevention) Act.
Ratio Decidendi: The violation of Section 15(2) 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.
Final Decision: The court quashed the proceeding of the Case No. 426 of 2007 (State vs. Rashmi Srivstava and Others) under Sections 3/4/5/7/8/9 of the Act, P.S. Sarojini Nagar, District Lucknow, pending before Judicial Magistrate-III, Lucknow.
Key Points: - The judgment states that violation of Section 15(2) is irregular but not a ground for quashing the proceeding; evidence scrutiny is required. (!) (!) - It holds that a customer found in a brothel cannot be held liable under Sections 3/4/5/7/8/9 of the Act. (!) (!) (!) (!) - The proceeding was quashed against the applicant because the person was a customer and not liable under the cited sections. (!) - Section 15(2) requires two witnesses (one may be a woman) for searches without a warrant; absence of witnesses makes search doubtful but not automatically void. (!) (!) (!) (!) - The analysis differentiates between acts constituting keeping/managing a brothel (Section 3) and mere customer presence (not liable) under the Act. (!) (!) - The court references thatSection 7 or 8 do not apply to a solitary customer absent other statutory circumstances. (!) (!) - The decision emphasizes trial-level consideration of irregularities in Section 15(2) without barring the case from trial. (!) (!) - The final outcome: application under Cr.P.C. Section 482 quashed the proceeding in Case No. 426 of 2007. (!) (!)
JUDGMENT :
ARUN KUMAR SINGH DESHWAL, J.
1. Heard learned counsel for the applicant and Sri Arvind Kumar Tripathi learned A.G.A. for the State.
2. The instant application u/s 482 Cr.P.C. has been filed seeking quashing of the entire proceeding of Case No. 426 of 2007 (State vs. Rashmi Srivastava and Others), arising out of Case Crime No. 137 of 2006, under Sections 3/4/5/7/8/9 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as “Act”) P.S. Sarojini Nagar, District Lucknow, including the charge sheet No. 7 of 2006 dated 7.8.2006, pending before Judicial Magistrate-III, Lucknow.
3. Though the present application has been filed after a considerable delay, this is being entertained because question of law is involved here.
4. The facts, giving rise to the present impugned proceeding, are that on 11.6.2006, the police conducted a search of a house that belonged to one Haji, on the information received from an informer that some of the persons were conducting prostitution. During the search, the applicant was found in an intimate position with co-accused lady “S” (name changed), who was allegedly involved in prostitution in a locked room. As per the police, S.H.O. had seen the present applicant and one lady “S” in an intimate position through cracks in the door. Based on this search, an F.I.R. dated 11.6.2006 was registered against the accused persons, including the present applicant, as Case Crime No. 137 of 2006, under Sections 3/4/5/7/8/9 of the Act. The police, after investigation, had also submitted a charge sheet against the applicant and five other co-accused persons, u/s 3/4/5/7/8/9 of the Act on 7.8.2006, whereupon the learned C.J.M. also took cognizance on 10.8.2006 and the proceeding was registered as Case No. 426 of 2007.
5. The contention of learned counsel for the applicant is twofold:
(ii) 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.
6. In support of his first contention, learned counsel for the applicant has relied upon the judgment of High Court of Karnataka, Kalaburagi Bench in the case of Shivaraj vs. State of Karnataka in Criminal Petition No. 200782 of 2016 and in support of his second contention learned counsel for the applicant has relied upon the judgments of Karnataka High Court in Raghavendra @ Raghu vs. State of Karnataka in Criminal Petition No. 8055 of 2016, Mahesh Hebbar @ Mahesh vs. The Station House Officer, Banaswadi, P.S. Bangalore in Writ Petition No. 56504 of 2015, Babu S. vs. State by Kengeri Police Station Bengaluru in Criminal Petition No. 2119 of 2022, Barath S.P. vs. State of Karnataka in Criminal Petition No. 1757 of 2022 and Suraj vs. State of Karnataka in Criminal Petition No. 7110 of 2011, the judgments of Andhra Pradesh High Court in Salapu Venkateswara Rao vs. State of Andhra Pradesh in Criminal Petition No. 2156 of 2022, Korada Subrahmanyam vs. State of Andhra Pradesh in Criminal Petition No. 6182 of 2022, Goenka Sajan Kumar vs. State of Andhra Pradesh in Criminal Petition No. 4161 of 2014, Nartu Rambabu vs. State of Andhra Pradesh in Criminal Petition No. 4289 of 2022 and Padala Venkata Sai Rama Reddy vs. State of Andhra Pradesh in Criminal Petition No. 6733 of 2021, the judgment of Gujarat High Court in the case of Vinod @ Vijay Bhagubhai Patel vs. State of Gujarat in Criminal Misc. Application No. 8156 of 2017 as well as the judgment of Madhya Pradesh High Court in the case of Naman Laddha vs. State of M.P. in Misc. Criminal Case No. 34970 of 2022.
7. Per contra, learned A.G.A. submitted that as the applicant was ca
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.
A customer found in a brothel cannot be prosecuted under the Immoral Traffic (Prevention) Act unless involved in managing or facilitating prostitution.
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....
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....
“Prostitution” means sexual exploitation or abuse of persons for commercial purpose, and expression “prostitute” shall be construed accordingly.”
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