Victims of prostitution cannot be prosecuted under Section 5 of the Immoral Traffic (Prevention) Act, 1956, as the section penalizes the act of procuring or inducing others into prostitution, not the act of engaging in it.

THIS CRL.P IS FILED U/S 482 CR.PC (FILED U/S 528 BNSS) PRAYING TO QUASH THE PROCEEDINGS AGAINST THE PETITIONER/ACCUSED NO.9 IN CC.NO.1397/2013 AND THE ORDERS OF COGNIZANCE TAKEN FOR THE OFFENCES P/U/S. 5 OF THE IMMORAL TRAFFIC PREVENTION ACT, 1956 AGAINST THE PETITIONER AND OTHERS ON 13.06.2013, ON THE FILES OF ADDL. CIVIL JUDGE AND JMFC, AT KUNDAPURA.

THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA

ORAL ORDER

The petitioner is before this Court calling in question the proceedings in C.C.No.1397/2013 registered for the offence punishable under Section 5 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as 'the Act' for short).

Heard Sri. Kumara, learned counsel appearing for the petitioner, Smt.Sowmya R, learned HCGP appearing for respondent No.1 and have perused the material on record.

The petitioner is accused No.9. A crime comes to be registered on a search or a raid conducted in Crime No.16/2013 against several accused for the offence punishable under Section 5 of the Act. Accused Nos.7, 8 and 9 were taken into custody on the score that they were indulging themselves in prostitution or were sex workers. The proceedings have gone on since then.

It is by now too well settled a principle of law that the victims who were caught at the time of search should not be made accused. This Court, in the case of SWATHI v. STATE OF KARNATAKA , 2024 SCC OnLine Kar 5539, has held as follows:

"…. …. ….

7. The afore-narrated facts are not in dispute. The petitioner was being transported for the purpose of engaging her in the business of prostitution is a matter of record. The allegation against the petitioner is one punishable under Section 5 of the Act. Section 5 of the Act reads as follows:

5. Procuring, inducing or taking person for the sake of prostitution .—(1) any person who

(a) procures or attempts to procure a person, whether with or without his consent, for the purpose of prostitution; or

(b) induces a person to go from any place, with the intent that he may for the purpose of prostitution become the inmate of, or frequent, a brothel; or

(c) takes or attempts to take a person, or causes a person to be taken, from one place to another with a view to his carrying on, or being brought up to carry on prostitution; or

(d) causes or induces a person to carry on prostitution;

shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years:

Provided that if the person in respect of whom an offence committed under this subsection,

(i) is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and

(ii) is a minor, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years;

………

(3) An offence under this section shall be triable—

(a) in the place from which a person is procured, induced to go, taken or caused to be taken or from which an attempt to procure or take such person is made; or

(b) in the place to which he may have gone as a result of the inducement or to which he is taken or caused to be taken or an attempt to take him is made.”

(Emphasis supplied)

Nowhere Section 5 of the Act would indicate that a woman who is a victim of prostitution should be punished for offences punishable under Section 5 of the Act. It clearly indicates that any person who procures or attempts to procure a woman or a girl for the purpose of prostitution would become liable for such prosecution.

8. The High Court of Bombay in the case of Kajal Mukesh Singh