MP HC | A sex worker cannot be considered to be exploiting herself so as to bring her within the ambit of S. 370 IPC for the offence of trafficking

Madhya Pradesh High Court: Rajendra Kumar Srivastava, J., quashed the charge under Section 370 IPC framed against the petitioner.

On receiving information about the act of Prostitution being carried on, police reached the place and found that the accused/petitioner was involved in the prostitution activities with another co-accused.

Accused/petitioner and other co-accused were arrested, FIR was lodged under Section 370 read with Section 34 of Penal Code, 1860 and Sections, 3, 4, 5, 6 of Immoral Trafficking (Prevention) Act, 1956.

Additional Sessions Judge framed the charge against the accused/petitioner under Section 370(2) of IPC.

Petitioners counsel submitted that the Court below committed gross error of law in framing charge against accused/petitioner.

As per the prosecution story, accused/petitioner was caught in a suspicion condition while doing prostitution.

Thus, as per the prosecution case itself present accused/petitioner was not involved in trafficking of person rather she has been subjected to the trafficking for the purpose enshrined under Section 370(1) of IPC. In such circumstance, no charge can be framed against the accused/petitioner under Section 370(2) of IPC.

Analysis and Decision

Section 370(1) of IPC provides exploitation of threats, using force or any other form of coercion, abduction or practising fraud or deception, abuse of power by inducement, inducement including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking.

Further the Court observed that, admittedly, accused/petitioner is a lady and she cannot be considered to be exploiting herself, so as to bring her within the ambit of Section 370.

In fact, she is the person who would be considered as being exploited under Section 370 of IPC.

Court relied on the Gujarat High Court Judgment Vinod v. State of Gujarat, 2017 SCCOnline Guj 446, wherein the Gujarat High Court had referred to clarification by Justice Verma Committee:

Members of the Committee wish to clarify that the thrust of their intention behind recommending the amendment to Section 370 was to protect women and children from being trafficked. The Committee has not intended to bring within the ambit of the amended Section 370 sex workers who practice of their own volition. It is also clarified that the recast Section 370 ought not to be interpreted to permit law-enforcement agencies to harass sex workers who undertake activities HC-NIC Page 14 of 24 Created On Sat May 06 01:34:48 IST 2017 of their own free will, and their clients. The Committee hopes that law enforcement agencies will enforce the amended Section 370, IPC, in letter and in spirit.

We request you to clarify that your intention was not to criminalize the lives of sex-workers but rather to criminalize only those who ‘exploit the prostitution of others’ i.e. traffickers in persons.

Thus, High Court on perusal of the above held that, charge under Section 370 of IPC has been erroneously framed against the accused/petitioner since she is herself an exploited person as per Section 370 of IPC.

Hence, accused/petitioner be discharged forthwith. [X v. State of M.P., 2020 SCC OnLine MP 1079 , decided on 20-05-2020]

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