MP High Court Quashes ITPA Case, Citing Lack of Evidence and Act's Focus on Exploiters

Indore: In a significant ruling, the High Court of Madhya Pradesh has quashed an FIR and subsequent criminal proceedings initiated under various sections of the Immoral Traffic (Prevention) Act, 1956 ( ITPA ) against two individuals apprehended during a raid on a spa. The court, presided over by Justice Sanjeev SKalgaonkar , held that the prosecution failed to present prima facie evidence supporting the specific charges against the petitioners and emphasized that the Act primarily targets organized exploitation rather than individuals merely alleged to be involved in prostitution.

The petition was filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (equivalent to Section 482 of the old CrPC), seeking to quash FIR No. 45 of 2021 registered at Police Station, Mahila Thana, Indore, and the ongoing trial (RCT No. 3086/2021).

Background of the Case

The case originated from a raid conducted by the Indore Crime Branch on " Atoms Salon , Spa and Skin Clinic" following secret information about alleged immoral activities. A decoy operation was executed, and subsequently, a raid team entered the premises. The petitioners were found in separate rooms with male clients and allegedly admitted their involvement in prostitution for money, stating they received a share of customer fees. Police seized phones, condoms, and marked currency. An FIR was registered under Sections 3 , 4 , 5 & 6 of the ITPA . Section 7 was later added to the charge sheet.

Petitioners' Arguments

The petitioners argued they were falsely implicated and that the allegations of being found in a compromising position and involved in immoral activity were baseless and unsupported by credible evidence. They contended there was no prima facie evidence to support charges under Sections 3 , 4 , 5 & 6, particularly asserting a lack of proof they were habitually involved, part of organized activity, or conspirators. They submitted that in the absence of evidence suggesting they organized or promoted illegal activity, they should be treated as victims of exploitation. They also alleged the raid violated Section 15 of the ITPA and that the alleged offences were not made out against them.

Crucially, the petitioners' counsel argued there was no material to show their involvement in commercial sexual activity except their own statements under Section 27 of the Evidence Act, which are inadmissible. They also argued that the essential ingredient for Section 7 (prostitution in a notified area or within 200 meters of specific public places) was missing, as there was no evidence the spa's location met this criterion.

State's Counter-Arguments

The State counsel argued that the petitioners were found in a compromising position with customers in a room at a spa operating in a public place (Sagun Arcade Building), which prima facie made out the alleged offence.

Court's Analysis and Reasoning

Justice Kalgaonkar relied on established principles for quashing criminal proceedings under inherent powers, as laid down by the Supreme Court in cases like State of Haryana v. Bhajan Lal and Madhavrao Jiwajirao Scindia v. Sambhajirao Chanrojirao Angre . These principles allow quashing when allegations, even taken at face value, do not prima facie constitute an offence, when the evidence collected does not disclose the commission of an offence, or when the chances of conviction are bleak, making the continuation of the prosecution an abuse of process.

The court delved into the definition of "prostitution" under the amended ITPA , 1956 (Section 2(f)), which defines it as "sexual exploitation or abuse of persons for commercial purpose." It noted that the term "prostitute" is to be construed accordingly, implying they are victims of exploitation. The judgment underscored a key principle: "A victim cannot be prosecuted as an accused of prostitution."

Referring to the aim of the ITPA , the court stated that the Act's purpose is to abolish "commercialized vice," traffic in persons for prostitution as an organized means of living, and prohibit prostitution in certain public places under Section 7 . It is not intended to punish individuals simply for prostituting themselves. The court also cited the Supreme Court's directions in Budhadev Karmaskar v. State of West Bengal , which stated that adult sex workers participating with consent should not be arrested, penalized, or harassed during raids on brothels.

Analyzing the specific charges, the court found: * ** Sections 3 , 4, 5 , 6 ITPA : These sections penalize keeping a brothel, living on earnings of prostitution (of another person), procuring/inducing persons for prostitution, and detaining persons for prostitution. The allegations against the petitioners related merely to "indulging in the act of prostitution." Therefore, the court held that "the offences punishable under Sections 3 , 4 , 5 or 6 the Immoral Traffic (Prevention) Act, 1956 are prima facie not made out against the petitioners." * ** Section 7 ITPA : This section prohibits prostitution in premises within notified areas or within 200 meters of specific public places like religious worship sites, educational institutions, hospitals, etc. The court found "no evidence in the case diary or the final report... to show that the Atoms Salon ... falls within the periphery notified by the State Government or the Commissioner of Police. There is no evidence to indicate that Shagun Arcade building is within a distance of two hundred metres of any place of public religious worship, educational institution, hostel, hospital or nursing home." Thus, the "essential ingredient for constituting the offence punishable under Section 7 of the IT(P) Act,1956 is missing in the prosecution."

The court further noted that the only material suggesting a commercial transaction was the petitioners' statements recorded under Section 27 of the Evidence Act, which are legally inadmissible as confessions made to a police officer (Section 25, Evidence Act).

Based on this analysis, the court concluded that the uncontroverted allegations and collected material did not disclose the commission of the alleged offences against the petitioners.

Decision and Implications

Finding the chances of conviction "apparently bleak" and that allowing the prosecution to continue would serve "no useful purpose" and would be an abuse of the process of the court, Justice Kalgaonkar invoked inherent powers under Section 528 of the BNSS .

The High Court ordered: "FIR at crime No. 45/2021 registered at the P.S. Mahila Thana, Indore alongwith subsequent proceedings in RCT No. 3086/2021 pending before the Judicial Magistrate First Class, Indore are quashed with reference to the petitioners. The petitioners stand discharged."

This judgment reinforces the legal position that the ITPA targets the organizers, exploiters, and commercial aspects of immoral traffic, rather than criminalizing individuals who may be victims of exploitation. It also highlights the necessity for the prosecution to strictly prove the essential ingredients of each charge, including the specific locational requirements for offences under Section 7 .