IMPORTANT POINT
Customers cannot be prosecuted under the Immoral Traffic (Prevention) Act without evidence of trafficking, but may be liable under Section 370(A)(2) IPC if they had reason to believe victims were trafficked.

ORDER :

1. This Criminal Petition is filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS’) by the petitioners/accused Nos. 4 and 5 to quash the proceedings against them in S.C. No. 176 of 2024 on the file of VI Additional Chief Judicial Magistrate, Ranga Reddy District, Kukatpally, for offences punishable under Section 370(A)(2) of the Indian Penal Code, 1860 (for short ‘IPC’) and Sections 3, 4 and 5 of the Immoral Traffic (Prevention) Act, 1956 (for short ‘the Act’).

2. The brief facts of the case are that on 10.03.2022 at about 20:50 hours, on receiving credible information about running of brothel house at H. No. 3-916, 3rd floor-302, Preethi Enclave, Road No. 47, Swon Environmental Colony, Ayyappa Society, Madhapur, the Police raided the said premises and noticed that with an intention to earn money in ease manner, accused Nos. 1 to 3 procured the victim women for participating in illicit sexual intercourse with the customers by offering attractive amounts. It is stated that accused Nos. 4 and 5 went to the said premises for participating in illicit sexual intercourse. As such, except accused Nos. 1 and 2, who are absconding, accused Nos.3 to 5 along with the victim women have been taken into custody and seized cash and mobile phones. Hence, a case was registered vide Crime No. 247 of 2022 on the file of Madhapur Police Station, Cyberabad and after completion of the investigation, charge sheet was filed vide S.C. No. 176 of 2024 before the VI Additional Chief Judicial Magistrate, Ranga Reddy District at Kukatpally.

3. Heard Sri Godugu Mallesham, learned Counsel for the Petitioners and Sri E. Ganesh, learned Assistant Public Prosecutor for respondent No. 1-State.

4. Learned counsel for the petitioners submitted that since the petitioners/accused Nos. 4 and 5 are customers, the offences under Sections 370(A)(2) of IPC and Sections 3 to 5 of the Act are not applicable. In this regard, he placed reliance on Crl. Pet. No. 5073 of 2023 and batch dated 16.08.2023 and prayed the Court to allow the Criminal Petition by quashing the proceedings against the petitioners/accused Nos. 4 and 5.

5. On the other hand, learned Assistant Public Prosecutor for respondent No. 1-State opposed the submissions of the learned counsel for the petitioners stating that the presence of the petitioners were clearly found by the Police at the scene of offence and was taken into custody. He further submitted that according to the prosecution, this petitioners are also alleged for the offence under Section 370(A)(2) of IPC as the petitioners are the customers and placed reliance on the order of this Court in Thanna Bharagav Kumar vs. State of Telangana, Crl. Pet. No. 5999 of 2022. Therefore, prayed the Court to dismiss the Criminal Petition.

6. In view of the rival submissions of both the counsel, this Court has perused the material available on record. Learned counsel for the petitioners mainly relied on the common order of the Court in Criminal Petition No. 5073 of 2023 and batch, wherein at paragraph No. 26 it is held as under:

“26. But, in the present cases, none of the witnesses/sex workers stated that they have been exploited sexually or of sexual abuse. In the absence of any material that the women are trafficked for the purpose of engaging for sexual exploitation, the offence under Section 370 (A)(2) I.P.C. will not attract against the customers. Further, the wording “trade to flesh” is not found in the said Section. As per Section 370 (A)(2) I.P.C. it is for the prosecution to always prove that the customer is also having reason inter alia to believe that the victim is trafficked, engages persons for sexual exploitation. Then only the said Section is attracted.”

7. A plain reading of the above would abundantly make it clear that in the aforesaid common order, neither the witnesses nor the sex workers admitted that they have been exploited sexually or of sexual abuse. As such, in the absence of statements of victims to